UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


//^ 


>^ 


A   DIGEST 


CRIMINAL    LAW 


A    DIGEST 


\T 


CRIMINAL    LA^^ 


(CRIMES   AND   PUNISHMENTS) 


BY  THE  LATE 

SIR  JAMES   FITZJAMES  ^STEPHEN,   BART. 

K.C.S.I.,   D.C.L. 

ONE    OF    THE    JUDGES    OF    THE    IIIOH    COURT,    AND    AN    HONORARY    FELLOW    OF 
TRINITY    COLLEGE,    CAMBRIDGE 


SIXTH   EDITION 

BY 

SIR   HERBERT   STEPHEN,   BART. 

OF  THE    INNER   TEMPLE,    BARRISTER-AT-LAW 
CLEKK   OF   ASSIZE  FOR  THE   NORTUERN  CIRCUIT 

AND 

HARRY    LUSHINGTON   STEPHEN 

ONE   OK   THE   Jl'DOES   OK   THE    HKiH   COURT   OF  CAI.CUITA 


ILontian 
.MAC.MIJ.LAN    AND   (M).,  Ij.mitkd 

NKW    VoKK:    rilK   M  A(  M  I  l.l.AN  (O.Ml'ANY 
All  Jdul'ti  Ktieritd 


T 
I9d4 


Richard  Clay  and  Sons,  Limited, 

bread  street  hill,  e.c.,  and 

bungay,  suffolk. 


First  Edition  1877,  Second  1879,  Third  1883,  Fourth  1887,  Fifth  1894,  Sixth  1004. 


PREFACE   TO   THE   SIXTH   EDITION 

SI^'CE  the  publication  of  the  Fifth  Edition  in  1894, 
the  principal  Statutes  which  have  been  enacted 
modifying  the  Criminal  Law  are  the  Larceny  Act 
189G  (59  &  GO  Vict.  c.  52),  relating  to  possession 
witliin  the  United  Kingdom  of  property  unlawfully 
obtained  elsewhere  ;  the  Prison  Act  1898  (61  &  62 
Vict.  c.  41) ;  the  Companies  Act  1900  (63  &  64  Vict. 
c.  48,  s.  28);  and  the  Larceny  Act  1901  (1  Edw.  7 
c,  10).  A  new  misdemeanour  has  also  been  created 
by  the  Seal  Fisheries  (Northern  Pacific)  Act  1895, 
58  &  59  Vict.  c.  21,  s.  1,  subs.  (3). 

Of  these,  the  Larceny  Act  1901  is  considerably 
tlie  most  important.  It  deals  with  the  fraudulent 
conversion  of  property  held  for  others,  and  substitutes 
a  simple  and  comprehensive  rule  for  the  cumbrous 
and  insutticient  provisions  of  the  75th  and  7()th 
sections  of  the  Larceny  Act  1861,  which  sections  it 
repeals.  So  comprehensive  is  it,  indeed,  that,  though 
primarily  designcil  to  iiicot  the  case  of  iraudulcnt 
misappropriation  (jf  money  (if  which  an  agciil  liad 
lawfully  assumed  tlic  control,  it  has  alicady  been 
u.se<l    to    luc'cL    liaiKluh'iit  conversions   ol    chattels   lor 

780501 


viii  r  HE  FACE 


wliicli    the   [)r('\ii>usly  existing  law  would    have  been 
quite  sulliciciil. 

While  this  Edilioii  is  passing  through  the  press, 
the  Penal  Servitude  Jiill  1904  seems  likely  to  be 
passed  into  law.  It  is  intended  to  enable  and  en- 
courage Judges  to  pass  long  sentences  of  modified 
penal  servitude  u[)oii  habitual  offenders. 

No  cases  of  the  first  importance  have  been  decided 
since  the  Fiftli  Edition  was  published,  but  all  those 
that  have  been  reported  have  been  considered,  and, 
it  is  hoped,  have  been  incorporated  either  in  the  text 
or  ill  the  notes. 

We  are  indebted  to  Mr.  J.  B.  Matthews,  of  the 
Middle  Temple,  for  several  corrections  and  sugges- 
tions which  he  kindly  sent  to  us  on  the  appearance 
of  the  Fifth  Edition. 

The  Alphabetical  Table  of  Indictable  Offences  is 
republished  with  some  slight  additions  and  cor- 
rections. 

H.  S. 

June,  1904.  H.   L.   S. 


TABLE   OF   CASES   CITED 


A. 

PAGE 

Abbott,  R.  I- 302 

Abraham's  Case 277 

Addis,  R.  I- 269 

Adey'sCase 186,  419 

Aickle's  Case 327 

Allen,  R.  i'.  (1835,  7  C.  &  P.  153)     170 

,  (1839,  9  C.  &  P.  31)    207 

,(1872,  ICC.  R.  367)    213 

Allen  and  Others,  R.  v.     .  184,  189, 
408,414 

Almond,  R.  V 229,  230 

Anderson,  R.  *• 187,  188 

Anderson  v.  Hamlin      ....       224 

Antrobus,  R.  r 91 

Archer,  R.  r 23 

Ardley,  R.  r 300 

Armorj'  i'.  Delamirie    ....       246 

Ashwell,  R.  t' 261,  262 

Aspinall,  R.  r 306 

Atkinson,  R.  «■ 23 

Att.-Gen.  of  Hongkong  v.  Kwok- 

a-Sing 78 

1-.  Terry 141 

Avery,  R.  t' 263,  264 


B. 


iJadgiT,  R.  ?• 89 

iiailey,  R.  <• 292 

Baker,  R.  /' 108 

Barnard,  H.  r 298 

lianie.H  *•.  Ward 149 

Barratl,  K.  r 203,  209 

liarrett'H  Case 185 

Barrett,  R.  /• 142 

Barninet,  Ex  jHirlt 27 

,  K.  /• 166,  187 

Barrow,  R.  /• 207 

Barlhel.-iny,  H.  r 187 

)'at<-nwiii,  K.  (• 325 


PAOE 

Batty,  n.  V 273 

Bazeley's  Case 244,  277 

Beatson  v.  Skene 232 

Beaumont,  R.  r 275 

Bembridge,  R.  v.      .    .    .88,  90,  123 

Bennett,  R.  t' 170,  177 

Berriman,  R.  c 194 

Best,  R.  ;■ 122 

Billingham,  R.  v 166 

Bishop,  n.  V 29 

Biswell,  R.  V 217- 

Blaby,  R.  r 14,  359 

Blades  r.  Higgs 252,  257 

Blenkinsop,  R.  r 325 

Boardman,  R.  r 322 

Boden,  R.  v 255 

Boult,  R.  r 350 

Boulton,  n.v 250 

Bower,  R.  t' 94 

Bowers,  R.  v 274 

Borron,  R.  r 88 

Bradford,  R.  ^• 375 

Bradlaugh,  R.  v 133,  134 

Bradlaugh  v.  Newdegate     .    .       112 

Brain,  R.  t' 175 

Brett,  Ex  jjarte 382 

Brodribb,  R.  i' 55 

Broniage  r.  Prosser 231 

Brooks  /".  Mason 29 

Brooks,  R.  ?' 23 

Brown,  R.  /•.  (1841,  Car.  &   M. 

314)         95 

,  (1843,  1  C.  &  K.  144)     213 

,(1870,  J  C.  C.  H.  244)      194 

,  (1883,    10  g.    i:.    I>. 

381) 10  1,  l'J5 

,  (1889,   24   (,>.    l:.    I). 

357) II,   107 

Brown  and  Webb,  li.  /•.  .    .    .       '_'i:! 

r.  Mallett I  III 

I    Biyan,   li.  /• 300 


TABLE   OF  CASES   CITED 


I>A(iIC 

Bul.b,  R.  (• 172 

Buck  master,  R.  r 2H0 

Bucknei's  Case 186 

Bullock,  R.  r 369 

Bunce,  R.  r 260 

Buncombe,  R.  c 23 

Bunn,  R.  r 39 

Burdett,  R.  r 71,  229,  230 

Burdon,  In  re,  ex  parte  Wood  380 
Burgess,  R.   r.  (1862,  L.   &  C. 

258) 190,  193 

,  (1863,  L.   &  C.   299)  264 

,   (1885,   16  Q.  B.   D. 

141) 122 

Burgon,  R.  r 302 

Burns  v.  Nowell 27 

Burrell,  R.  r 215 

Burt  V.  Burt 211,  213 

Burton,  R.  v 270 

Byrne  v.  Beadle 170 

Bj'ron's  (Lord)  Case 186 

Byron  (Lord),  R.  c 187 

C. 

Cabbage,  R.  ?' 254 

Callahan,  R.  r 273 

Camplin,  R.  r 208 

Capital  and   Counties   Bank    r. 

Henty 227,  229 

Carlisle's  Case 305 

Carlisle,  R.  r 239 

CaiT  V.  Hood 234 

Carr,  R.  v.  (1811,  R.  &  R.  19S)  273 

,  (1832,  8  C.  &  P.  163 1  177 

Cartwright  v.  Green  .  .  .  244,  257, 
262,  265, 425 

Gary's  Case 190 

Case,  R.  t' 203 

Castlehaven's  (Lord)  Case  .    .  208 

Castro,  R.  V 19 

Chad  wick,  R.  v.  (1844,  2  M.  & 

R.  545) 326 

,   (1847,    11    Q.   B. 

205) 212 

Chamljers,  R.  r 331 

Chandler,  R.  r ■    .  220 

Chapman,  R.  v 278 

Chapman's  Case 109 

Clieafor,   R.  r 252 

Cheeseman's  Case  .  ...  40 
Child,  R.  ('.  (1830,  4  G.  &P.442)  57 
.    (1871,    1    C.   C.   R. 

307) 368 


Chipchase's  Case 277 

Christian,  R.  r 311 

Clark  /■.  Molyneux 232 

Clark  r.  R 153 

Clarke's  Case 253 

Gloss,  R.  ?' 307 

Goggs  V.  Bernard 247 

Collins,  R.  V.  ( 1 864,  L.  &  G.  47 1 )  41 
Collins,  R.  c.  (1839,  9  C.  &  !'. 

456) 71 

,   (1843,   2  M.    &  R. 

461) 326 

Commonwealth  v.  Holmes  .  .  26 
Coney  and  Others,  R.  v.  .    .    31,  166 

Connor  v.  Kent 393 

Cooke,  R.  V.  (1838,  8  C.  &  P. 

582) 322 

,   (1871,    1   C.    G.    R. 

295) 245 

Cooper,  R.  r.  (1833,  5  C.  &  P. 

535) 33 

,  (1846,  8  Q.  B.  533)  229 

,   (1874,   2    C.   C.    R. 

123) 311 

Coslet'sCase 246 

Cox  f.  Lee 229 

,  R.  t; 207 

Coxhead  v.  Richards    ....  232 

Cramp,  R.  ?' 198 

Crawley,  R.  ?; 148 

Crawshaw,   R.  r 146 

Cruse,  R.  r 23,  32 

Crutchley,  R.  f 24 

Cuddey,  R.  v 187 

Cullum,  R.  i; 273,  276 

Curgerwen,  R.  t? 212 

Curran  v.  Treleaven      ....  393 

Gurry  v.  Walter 238 

Cutler  V.  Dixon 237 

D. 

Dale,  R.  (' 95 

Danger,  R.  v 297 

Dant,  R.  ?; 173 

Davenport,  R.  i' 259 

Da\ies'  Case      257 

Davies,  R.  i; 262 

Davis,  R.  v 419 

Dawkins  v.  Lord  Paulet  .    .    .  238 

r.  Lord  Rokeby    .    .  237 

Dawson,  R.  v 78 

Day,  R.  r 203 

Deasy,  R.  r 43 


TABLE   OF   CASES   CITED 


XI 


PAGE 

De  Banks,  'R.  v 262 

De  Berenger,  R.  i' 305 

Dee,  R.  i" 207 

D'Eon,  R.  r 73 

Delaval,  R.   r 132,  137 

Delegal  v.  Highley 239 

Desmond  and  Others,  R.  v.    184,  418 

Dibdiu  V.  Bostock 234 

Dicks,  R.  (• 23 

Dixon  r.  Bell 168 

,  R.  r 148 

Dolan,  R.  r 319 

Donellan's  Case 177 

Downes,  R.   r 220 

Dring,  R.  r 319 

Duckworth,  R.  v.  .   40,  192,  195,  203 

Dudley  and  Stephens,  R.  r.     .  25 

Duffev's  Case 33 

Duffield,  R.    I- 123 

Dugdale,  R.  v 40,41 

Duncan  v.  Thwaites      ....  239 
Diuin,    R.    V.    (1765,    1     Leach 

C.  C.  59) 327 

,(1848,  12Q.B.  1041)  18 

Dykes,  'R.  v 23 

E. 

Eagleton,  R.  r 40,  307 

Eastall,  R.  I- 259 

Edwards,  R.  r 257 

Eggington,  R.  r 257 

Elliot's  case  (1777,  2  East  P.  C. 

951) 327 

,  (1861,  L.  &  C.  103)  132 

Kinary  /•.  NoUoth 29 

Knimens  v.  Pottle 229 

Enoch,  R.  I' 175 

Ensor,  R.  v 227 

Krrington's  Case 183 

Hvans,  R.  v.  (1812,  1  Russ.  Cr. 

651) 179 

,     (1859,    Bell   C.    C. 

192) 299 

,  (1862,   L.  &  C.   755)  298 


Fall..!!,  |{.  ,• 37 

Fiilkinnlium,  |{.  /• 222 

Kiiiiiiiiig,  P..  /• 213 

Fiirniw,  K.  /• 19" 

FeulhtTMtono,  \i.  r i»(i3 


Fen  ton,  R.  v 185 

Ferens  v.  O'Brien 250 

Ferrall,  R.  v 96 

Ferrers' (Sir  H. )  Case    .  186,416,419 

Firth,  R.  V 250 

Fisher,  R.  v 186 

Fitch,  R.  V.  (1857,  D.  &  B.  187)  264 

,  (1862,  L.  &  C.    159)  331 

Flattery,  R.  v 207 

Fletcher,  R.  r.  (1841,    1    Russ. 

Cr.  676)      179 

,  (N.),  R.  V.  (1859,  Bell 

C.  C.  63) 208 

,  (1862,  L.  &  C.    180)  314 

,  (C),  R.    r.   (1886,  1 

C.  C.  R.  39) 209 

Flowers,  R.  v 261 

Foster,  R.  v 300 

Foulkes,  R.   i- 271 

French,  R.  v 331 

Fretwell,  R.  v 34,  190 

Friend's  Case 220 

Fullagar,  R.  v 311 


G. 


Gale,  R.  I' 

Gallagher,  R.  r 

Gardner,  R.  v.  (1856,  D.  &  D. 

205) 

,  (1862,  L.  &  C. 

243) 

Garrett,  R.    v.   (1853,   D.  &  P. 

232) 

,   (1860,    8   Cox, 


276 
43 


302 


C.  C.  368) 

Gathercole,  R.  r 228, 

Gay  lor,  R.  v 

Geach,  R.  r 

Gibl)on,  R.  V 

Gibson  r.  Lawson 

(iiles,  R.  r 

Glover,  R.  r 

Cilyde,  R.  /• 

(Joodbodv,  R.   (' 

Gordon,  "li.  r.  (17S7,  22  St.  Tr. 

2\:^) 

,  ( 1 889,  23(>>.  i;.  I ). 

354) 

Gotley,  K.  r 

(ira}',  R.  /' 

(Jrey  (Lord),  R.  r 

GrfcM.  K.  (• 

( !re<!nucn',  K.  r 


267 

301 

268 
229 
191 
322 
108 
393 
299 
275 
266 
273 


73 

3(10 
1 22 
192 
137 
17(1 
191 


TABLE   OF   GASES   CITED 


Greenwooil,  R.   '". 

(iregory,  R.  *'•  .  . 

(Jiifliths,  R.  r.  .  . 

Groombiiilge,  R.  r. 

(iiove,  R.  V.  .     .  . 

Guelder,  R.  v.  .  . 

Gurney's  Case  .  . 


I'AOK 

180 

Mi,  35) 

.3-25 

208 
'278 
278 
107 


Hadfield,  R.  v.  (1803,  2  Russ. 

Cr.  640) 326 

,  (1870,  1  C.  C.  R. 

253) 37") 

Haines,  R.  c 179 

Hale,   R.  v.  (1828,   3  C.  &  P. 

409) 27,  255 

,  (1871,  1  C.  C.  R. 

282) 133 

,  (1875,  Leeds  As- 
sizes)        212 

Hanson,  R.  i' 147 

Hardy,  R.  v 375 

Harper,  R.  w 331 

Harring  v.  Walrond  ....  134 
Harris,  R.  v.  (1791,  4  T.  R.  202)  95 
,  (1834,  Moo.  C.  C. 

393) 350 

,  (1871,  1  C.  C.  R. 

282) 133 

,    (1893,    17      Cox 

C.  C.  656) 274 

Harrison  v.  Bush 231 

Harrison's  Case 263 

Hart,  R.  t' 325 

Harvey  v.  Farnie 212 

Harvey,  R.  v.  (1823,  2  B.  &  C. 

257) 71 

,  (1840,  9  C.  &  P. 

353) 259 

,  (1871,  1  C.  C.  R. 

285) 356 

Hassell,  n.  v 247,  268 

Hastings,  R.  ?' 81 

Haswer,  R.  r 119 

Hawkeswood's  Case     ....  327 

Hawkins,  R.  r 276 

Havnes,    R.   v.   (2   East  P.   C. 

652) 252 

,  (1815,  4  M.&  S. 

214) 307 

Hay  ward,  R.  r 189 

Hazleton,  R.  v 299 


I'AdK 

HcndtMSf)n  r.  Broonihead     .    .  237 

Hennah,  R.  r 198 

Henwood  v.  Harrison  ....  234 

Hermann,  R.  i' 354 

Hevey,  R.  v 305 

Hibbert,  R.  v 217 

Higgins,  n.  V. 39 

Hill,  n.  V 318 

Hillnian,  R.  i- 199 

Hoare  i\  Silverlock 238 

Hoatson,  R.  v 322 

Hodgkiss,  R.v 109 

Hodgson,  R.  v.  (1730,  1  Leach  6)  33 
,  (1828,  3  C.  &  P. 

422) 278 

,  (1856,D.&B.  3)  .323 

Hogan,  R.  V 220 

Hogg,  R.  i' 13 

Holbrook,  R.v 230 

Holland,  R.  r 179 

Hollis,  R.  V 259 

HoUoway,  R.  v 254,  255 

Holmes,  R.  r 1.32,  1.33 

Hook,  R.   r 172 

Hopkins,  R.  I- •  217 

Hopley,  R.v 162 

Hudson,  R.  V. 303 

Huggett's  Case  .  .  .186,417,419 
Hughes,   R.   ('.  (1813,   2   Lew. 

229) 23 

,  (1826,  2  C.  &  P. 

420) 369 

,  (1832,Moo.C.C. 

370) 273 

,   (1857,  D.  &  B. 

248) 170,184 

,  (1860,BellC.C. 

242) 36 

,  (1879,  4Q.B.D. 

614) 107 

Hughes'  Case 258 

Hunt,     R.    V.    (1825,    1    Moo. 

C.  C.  93) 199 

,  (1838,  8  C.  &  P. 

642) 275 

Hunter  v.  Sharpe 232 


Ingram's  Case 104 

Instan,  R.  v 172,  177 

Ion,  R.v 329 

Isaacs,  R.  r 198,199 


TABLE    OF   CASES    CITED 


J. 

PAGE 

Jackson,  R.  v.   (1787,    1   T.    R. 

653) 89 

,  (1813,  3  Camp. 

370) 299 

,  (1826,    1    Moo. 

119; 260 

James,   R.  v.  (1831,  5  C.  &  P. 

153) 56 

,  (1836,  7  C.  &  P. 

553> 323 

,  (1850.  2  Den.  1)  .  91 

,  (,  1 902, 1  K.  B.  5-40)  263 

Jarvi.s,  R.  r 148 

JefiFerys  v.  Boosey 124 

Jenkins  v.  Cook 91 

Jenkins  r.  Jones 112 

Jenks  V.  Turpin 143 

Jenner  v.  A'Beckett     ....  234 

Jennison,  R.  r. 300,  303 

Jenson,  R.  r. 273 

Jessop,  R.  r. 299 

Joneses  Case  (2  East  P.  C.  952)  327 

Jones's  Case  ( 1 840,  2  Moo.  171)  95 

Jones  i;Lloycl),  R.  r 278 

Jones  (Valentine),  R.  r.  .  .  .  90 
Jones,   R.    v.    (1812,  3  Camp. 

230) 149 

, (1846,  1  Den. 188)  254 

,   (1858,   D.    &    B. 

555; 292,  293 

,    (1870,     11     Cox 

C.  C.393) 81 

,  ( 1 883,  1 1  Q.  B.  D. 

118) 212 

,  (1898,  1  Q.B.  119)  301 

Jordin  v.  Crump 200 

Joyce,  R.  f. 332 


K. 


Kay,  R.  /•.  (1857,  D.  &  B.  231)     244 

,  f  1870,  1  C.  C.  R.  29)     335 

Kelly,   R.  r 30,31 

Kennedy  r.  Lyell      112 

Kennett,  R.  r 91 

Kcnrick,  R.  r 305 

Keyn,  R.  /• 72 

KiJham,  R.  r 250,  302 

King,  R.  r. 278 

KippH,  R.  »' 217 

Kiikham,  R.  v. 189 


L. 

PAGE 

Labouchere,  R.  y.         ....  227 

Lafrier's  Case 247 

Lake  v.  King 235 

Lambert,  R.   r 278 

and  Perr}%  R.  r.  .    .  71 

Lancaster,  R.  r 97 

Latimer,  R.  r 199 

Lawley  (Lady),  R.  f 113 

Le  Mesurier  v.  Le  Mesurier    .  212 

Leddington,  R.  v 39 

Ledger,  R.  /;. J78 

Lee's  Ca.se 299 

Leggett,  R.  f 162 

Leigh's  Case 267 

Levet's  Case 28 

Lewis  V.  Levy 238,  239 

Lewis,  R.  V.  (1840,  9  C.  &  P. 

523) 192 

,     (1869,    11    Cox, 

C.  C.  404) 305 

Lister,  R,.  i' 148,  278 

Lloj'd  Jones,  R.  w 278 

Lock,  R.  c. 203 

Lolley,  R.  r. 212 

Longbottom,  R.  ;? 178 

Longsheith,  R.  ;•. 260 

Lovell,  R.v 257 

Lows  V.  Telford 61 

Lynch,  R.  ?;. 188 

Lj'un,  R.  V. 138 

M. 

Mabbett,  R.  r. 173 

M'Athey,  R.  v 319 

MacDaniel  and  Others,  R.  r.  .  181 

Macdonald,  R.  c 262 

McDonald's  Case 273 

McGrath,  R.  v 257 

McGregor,  R.  v. 81 

V.  Thwaites  ....  239 

Mc(;rowther,  R.   i-. 24 

Mackale,  R.  v. 260 

McKeevit,  R.  r .  393 

.MaoXagliten's  Case 28 

McPlieraon,  R.  c 41 

.Mahoney,  R.  r 32(5 

•Manklctow,  R.  r 217 

Manlc-y,  R.  r. 31 

Manning,    R.  v.  (1852,  D.  &  P. 

345) 255 

,    (1871,    1    C.   C.    R. 

338) 368 


TABLE   OF   CASES   CITED 


PAOK 

Marcus,  R.  v. 322 

Marriott,  R.v 1 72 

Martin,  R.  v.  (18«7,  1  C.  C.  R. 

56) 298 

,    (1879,   5  Q.   B.   D. 

34) 327 

,   (1881,   8   Q.   B.  D. 

54) 199 

Mason's  Case 188 

Masters,  R.  y 245 

Mawbey,  R.  v 107 

Mawgridge,  R.  c.      .    .188,412,417 

May,  B,.  V 271 

Mazagora,  R.  r 322 

Meadows,  R.  i; 217 

Mears,  K.v. 137 

Merivale  v.  Carson   ....  233,  234 

Merry  r.  Green 244,  262 

Mertens,  R.  r.  ......    .         71 

Middleton,  R.  v.  .    .    .  244,261,262 

Millar  v.  Taylor 123 

Miller,  B.v 318 

Millis,  R.  i; 214,  261 

Mills,  R.  V 302 

Mitchell,  R.  r 350 

Moah,   R.  V.  (1856,   D.    &    P. 

626,  629) 278 

,  (1858,  D.  &  B.  550)     350 

^logul  Steamship   Company  v. 

Macgregor 390 

Monck  V.  Hilton 152 

Monson  v.  Tussauds  (Limited)     228 

Moody,  R.  r 332 

Moore,  R.  v 264 

Morby,  R.  ?• 171 

Morfit,  R.  V 89,  255 

Morgan,  R.  ?>. 257 

Morley's  (Lord)  Case   ....       186 

Morrison,  R.  r 250,  332 

Moss,  R.  u 303 

Most,  R.  r 71,  194 

Mount,  R.  ?' 3 

Mucklow,  R.  r 262 

Mulcahy  r.  R. 39,  47 

Mullany,  R.  r 108 

Munster  v.  Lamb 237 

Murphy,  R.  r 274 

Murphy's  Case      327 

Murray,  R.  i'. 245,  277 

Mutters,  R.t; 149,263,264 

N. 

Nash,  R.  (• 325 

Xaylor,  R.  y 304 


PAOE 

Negus,  R.  t' 271,273 

Nettleton,  R.  d 273 

Newman,  R.  v.  (1853,   1  E.  & 

B.  558) 231 

,   R.  V.  (1882,  8  Q.  B. 

D.  706) 331 

Norval,  R.  r 277 

0. 

O'Connell  t'.  R. 70 

Ogden,  R.  V. 281 

Okey,  R.  t; 89 

Oldham,  R.  t- 285 

Omichund  v.  Barker     ....  106 

Oneby,  R.  r 189 

Opie,  R.  r 123 

Orchard,  R.  i? 132 

Osborne,  R.  ?; 228 

Osmer,  R.  /• 160,  186,418 

Owen,  R.  r 20 

Owens,  R.  I' 369 

Oxenham,  R.  f 2()2 

Oxford,  R.  i; 22 

P. 

Palmer,  R.  t- 31 

Parker,  R.  ?\  (1837,  2  Moo.  1)  299 

,  (1839,  9  C.  &  P.  45)  364 

Parkes,  R.  v 326 

Pavne,  R.  ?' 118 

Pease,  R.  r 141 

Peltier,  R.  r 73 

Penson,  R.  c 213 

Perkins,  R.  v. 166 

Perry,    R.   v.  (1794,   R.   &  M. 

354) .    .  216 

,  (1855,  D.  &  P.  471)  194 

Peters,  R.  v.  (1843,  1   C.  &  K. 

245) 266 

,   (1886,   16  Q.  B.  D. 

636) 383 

Phelps,  R.  y 96,418 

Phetheon,  R.  r 268 

Phillimore  v.  Machon  .    .    .  126,  132 

Phillips  (".  Eyre 157 

Phillips,    R.   V.   (1801,   2  East 

P.  C.  662) 269 

,  (1805,  6  East  464)  64 

,  (1839,  8  C.  &  P. 

736) 208 

Philpott,  R.  /• 220 


TABLE    OF   CASES    CITED 


PAOE 

Philpott's  Case 108 

Pierson,  R.  r 142 

Pinckne}''s  Case    ......       307 

Pinney,  R.  c 91,  158 

Pitman,  R.  r 246 

Pluimiier's  Case 32 

Pocock,  R.  (• 177 

Pointon  r.  Hill 151 

Poole,  R.  ?• 255 

Pooley,  R.  (• 125 

Portugal,  R.  f 310 

Poulton,  R.  r. 175 

Poynton,  R.  c 246 

Pratt,  R.  r. 244,  267 

Preston's  Case 266,  267 

Price,   R.  v.  (1837,  8  C.  &  P. 

19) 23 

,  (1884, ,12  Q.  B.  D. 

247) 138 

Prince,  R.  r.      .    .    .28,29,217,260 

Probert,  R.  r 147 

Procter  v.  Webster 232 

Pym,  B,.  V 179 


R. 


Ram,  R.  r 208 

Ram.sey,  R.  r 126 

Randall,  R.   v 149 

Ransfonl,  R.  r 40 

Rea,  R.  (• 213 

Read,  R.  r 208 

Redford  c.  Birley 55 

Redman,  R.  r 280 

Ree.l,  R.  v.   (1842,  Car.   &   M. 

306) 27 

,  (1854,  D.  &  P.    168, 

257) 244,  431 

H«-nwi<  k  Williams' Case  .    .    ,  19 

Rice  an<l  Wilton,  R.  /•.     ...  142 

Richards,   R.  /• 254 

Ri^^maiden't*  Case 170 

Riley,    R.    r.    (1853,    I),  k    P. 

149; 266,267 

,    R.   /•.   (1896,    1    Q.   H. 

309) 335 

Ring,  R.  .•.  (1800,  8  T.  R.  585)  123 
,  (1892,  61  L.  J.  M.  C. 

110) 41,  197 

Ritiwrn,  R.  c.      .                         .  325 

Rivnldi,  R.  «•.  342 

KoU-rtu,  R.  c.  .    .  283 


Robertson,  R.  v.  (1864,  L.  &  C. 

483) 281 

,  (1865,  L.   &  C. 

604) 359 

Roberts's  Case      40,  41 

Robins,  R.  v.  (1844,  1  C.  &  K. 

456) 217 

,  (1854,  bear.   418)  245 

Robinson,  R.  v 298,  320 

Robinson's  Case 259 

Robson,   R.  ('.  (1861,   L.  &  C. 

93) 247 

,  (1885,  16  Q.  B.  D. 

140) 263 

Rosinski,  R.  c 203 

Rouverard,  R.  t". 132 

Rowe,  R.  r. 257,  265 

Rowlands,  R.  r. 123 

Rowley's  Case 184 

Russell,    R.   V.    (1805,   6   East 

427) 149 

,  (1827,  6  B.  &  C. 

566) 140 

,     (1832,     1     Moo. 

356) 34,  190 

,  (1854,  3  E.  &  B. 

942) 149 

,   (1842,  Car.  &  M. 

541) 364 

Russett,  R.  !• 260 

Rust,  R.  /' 283 

Rj-alls  V.  Leader 238 

Rylaufl,  R.  r. 220 

Rymer,  R.  c. 146 


S. 


Sadi,  R.  I' S20 

St.  Ceorge,  R.  r 192,203 

St.  John  Long,  R.  v.    .    .    .  170,  174 

Salmon,  R.  r. ;J3,  174 

Sandoval,  R.  c. 74 

Santos  /■.  Illidge ,S4 

Saundcis'  Case 35,  177 

Saunders,  R.  r 133 

Schlesinger,  R.  v 108 

Sciimidt,  R.  /• 319 

Sciiofiehl,  R.  r .{9 

Scott,  R.  1; l.ss 

Scroggs  (C.  J.),  R.  r 88 

Seaman  v.  Xethcrclift  ....       23? 

Searing,  R.  /' J.'il 

Self,  R.  «' isl 


TABLE   OF  CASES   CITED 


PAOK 

Silkr,  R.  r 175 

Sells  /•.   Hoare 107 

Suuior,  K.  /• -l-li) 

Sharnmn,  11.  c 350 

Shatpe.  R.  /• 138 

Slu'i)lK'nl,  R.  /■.  (1S5(),  1).  &  r. 

000) 288 

,  (18G'_>,    L.  &  C. 

147) 172 

,  (1868,  1   C.    C. 

R.  118) 293 

SheppariVs  Case .S2() 

Sherras  r.  De  Rulzon    ....  29 

Sherlock,  R.  r. 95 

SiiciM'ood,  R.  r 186 

Shickle,  R.  r 252 

Simon's  Case 258 

Simpson,  R.  r 247 

Sissinghurst  House  Case      .    .  32 

Skeen,  R.  *• 316 

Smith  (Charlotte),  R.  r.  ...  172 

,  (John),  R.  r 244 

,  (L.),  R.  r 195 

,  (V.),  R.  V 318 

,  (W.),  R.v 186 

,  R.  V.  (1826,  2  C.  &  P. 

449) 171 

,  (1855,  I).  &  P.  494)  318 

,  (1858,  D.  &  B.  553)  23, 

328 

,  (1862,  L.  &  C.  168)  332 

,  (1870,   1    C.    C.    R. 

266) 320 

Scares,  R.  r 31 

Soley,  R.  ?' 56 

Solomons,  R.  ?' 260 

Soiitherton,  R.  r 122 

Spencer,  R.  ?'. 273 

Spier  r.  Read 1 09 

Squire,  R.  v. 181 

Stamer,  R.  v 274 

Stallion,  R.  ^• 364 

Stannard,  R.  v 142 

Stedman's  Case 186 

Steele  r.  Brannan 134 

Stephenson,  R.  r. 138 

Stevens  v.  Sampson       ...  235,  238 

Stevenson,  R.  c. 186 

Stewart,  R.  v 138 

Stockdale  r.  Hansard  ....  235 

Stokes,  R.  r. 22 

Stratton  and  Others,  R.  r.  .    .  26 

Streeter,  Vi.  v 320 

Stuart,  R.  v. 273 

Swindall,  R.  y 179 


T. 

I'AdK 

Tabart  i:  Tipper '234 

Tankard,  R.  /; 274 

Tatloek,  R.  j; 311 

Taylor,  R.  v.  (1859,  1  F.  &  F.)  41 
,  (1875,   2  C.    C.   R. 

147) 34,  147 

Thallmann's  Case 133 

Thomas,  R.  v.  (1815,  4  M.  &  S. 

442) 163 

,  (1837,    7    C.    &    P. 

817) 189 

,  (1863,  L.  &  C.  313)  308 

Thompson,  R.  ?;. 263 

,  (G.),  R.  •;; 244 

,  (H.),  R.  r 245 

V.  Farrer 29 

r.  Shaken     ....  234 

Thorpe,  R.  v. 27 1 ,  275 

Thurborn,  R.  r. 265 

Timmins,  R.  ?'. 217 

Tite,  R.  w. 271 

Todd  V.  Hawkins 232 

,  R.  f 322 

Tolfree,  R.  r 263 

Tollett,  R.  (• 263 

Tolson,  R.  ?'.  ....  28,211,213 
Tomlinson,  R.  v.  (1866,  1  C.  C. 

R.  49) 108 

,  R.  r.  (1895,  1  Q.  B. 

706) 280 

Tooley's  Case    .    .186,417,419,422 

Topham,  R.  v 227 

Topping,  R.  r 211 

Torpey,  R.  r 23 

Toshack,  R.  *• 350 

Towers,  R.  v. 180 

Townley,  R.  v.      ...  252,  256,  258 

Train,  R.  v 140 

Trainer,  R.  v. 163 

Tranter,  R.  i- 161 

Trebilcock,  R.  v 268 

Trilloe,  R.  v 175 

Triquet  and  Others  v.  Bath     .  72 

Tuff's  Case 323 

Turner,  R.  v. 383 

Tyree,  R.  i-. 274 

Tyrell,  R.  ;.'.      209 

Tyson,  R.  v 108 

U. 

United  Kingdom  Telegraph  Co., 

R.  I'. 140 

Usill  V.  Hales 238 


TABLE   OF  CASES   CITED 


V. 

PAGE 

Van  Biitchell,  R.  ?• 170 

Vann,  R.  c. 138 

Vantandillo,  R.  c 147 

Vaughan,  R.  r. 97 

Villars  i:  Mousley 229 

Villensky,  R.  c 318,319 

A'iucent,  R.  i:  (1839,  9  C.  &  P. 

91) 55,71 

.  ( 1 852,  2  Den.  464)     245 

Vint,  R.  r 73 

Vreones,  H.  v 124 

W. 

Wager,  R.  v 179 

Waite,  R.  f 209 

Wakefield,  R.  r 216 

Walker,  R.  r 274 

Walker's  Case 271,274 

Walsh,  R.  r 246 

Walsh's  Case 267 

Walters,   R.    v.   (1688,   12   St. 

Tr.  114) 186,  187 

,   (1841,   C.    &   M. 

164) 184 

Walton,  R.  (• 281 

Warburton,  R.  r 305 

Ward,  R.  r 350 

Wardroper,  R.  r 23 

Warner,  R.  r 419 

Wason  r.  Walter 235 

Watson,    R.    v.    (1705,    2    Ld. 

Raym.  856) 147 

,  (1857,  D.  &  B.  348)     302 

Watts,  R.  V.  (1798,  2  Esp.  675)     149 

,  (1850,  2  Den.  19)   .       277 

,  (1854,  1).  &  P.   326)     250 

Webb,  R.  V.  (1848,  1  Den.  338)     132 

,  (1835,  1  Moo.  431)     254, 

255,  308 

Webster,  R.  r 137,264 

W.dch,  R.  »• 274 

\V.lli;iiii,  K.  (• 39,  399 

\V..ll,inl,  K.  r 133 

Weat,  R.  r.  (1854,  D.  &  P.  402)  266 
,  (1858,  D.  &  li.  575)     300 


PAGE 

Whitchurch,  R.  r 39,  197 

White  r.  Crisp 149 

White,   R.  i:    (1853,    D.    &    P. 

203) 247,  250 

,  (1871,    1   C.    C.    R. 

311) 222 

Whitemtm,  R.  c 372 

Wild's  Case 162 

Wiley,  R.  r 318 

Wilkes's  Case 19 

Wilkins,  R.  r 199 

Wilkmson,  R.  r 264 

Willes  i:  Bridger 397 

Williams  v.  Stott 274 

Williams,  R.  v.  (1762,    3  Burr. 

1317)      89 

,  (1838,  8  C.    &  P. 

286) 203 

,  (1893,  1  Q.  B.  320)  209 

Williams's  Case 399 

Williamson,  R.  r 170 

Wilson,  R.  r.  (1839,  9  C.  &  P. 

27) 276 

,  (1847,    1   Den.    284)  322 

,  (1856,  D.  &  B.    127)  197 

Windsor,  R.  r 261 

Winnall,  R.  r 278 

Withers,  R.  r 186 

Woodward,  R.  r 319 

WooUey's  Case 299 

Wright,   R.    r.    (1758,    1  Burr. 

543) 95 

,  (1841,  9  C.   &  P. 

754) 175 

,  (1858,  D.&B.  431)  277 

Wyat,  R.  r 88,  90 

Wyatt,  R.  r 191 

Wynn's  Case 254 

Y. 

Young,  R.  r 306 

Z. 

Zuletta,  R.  /• SI 


TABLE   OF   STATUTES   CITED 


14 


Magna  Charta  . 
3  Edw.  1,  c.  9  . 

3  Edw.  1,  c.  25 
13  Edw.  1,  c.  4 
13  Edw.  1,  c.  49 
28  Edw.  1,  c.  11 
33  Edw.  1      .    . 
1  Edw.  2,  St.  2 

1  Edw.  3,  St.  2,  c 

2  Edw.  3,  c.  3  . 

4  Edw.  3,  c.  1 1 
25  Edw.  3,  St.  5,  c 
25  Edw.  3,  St.  15, 

27  Edw.  3,  c.  40  . 

I  Ric.  2,  c.  4     .    . 

5  Ric.  2,  St.  1,  c.  7 
15  Ric.  2,  c.  2  .  . 
5  Hen.  4,  c.  5  .  . 
8  Hen.  6,  c.  9    .    . 

II  Hen.  7,  c.  1 

23  Hen.  8,  c.  1,  s.  ; 

24  Hen.  8,  c.  12    . 

28  Hen.  8,  c.  15,  s.  2 


32  Hen.  8,  c.  9 

33  Hen.  8,  c.  9 
1  Edw.  6,  c.  1 


s.  1 


2  &  3  Edw. 
5  &  6  Edw. 


c.  1 


1  Eliz.  c.   2,  H.  2 

,  s.  3 

1 3  Eliz.  c.  2  .    . 
18  Eliz.  o.  5,  s.  4 


fre<li 


.SI   Eliz.  f.  11 

I  .la.  1,  c.  12 

■-'I  Ja.  1,  <;.   15 

1 3  Car.  2,  c.    1 

I .'{  Car.  2,  <:.  5 

I  I  (Jar.  2,  c.  4,  h.  20 


43 


PAGK 

10 
122 
112 
132 
12,401 
401 
112 
119 
12,401 

54 
112 
,  44,  45 

44 

396 

12,401 

61 

61 
413 

61 

44 
408 
128 

78 

78 

12,401 

402 

91 
128 
129 
103 
104 
129 
128 
45,  4H 
12,  122 
1 22 

61 
180 

61 
128 

62 
2.S,  12!) 


29  Car.  2,  c.  9  .    .    .    . 

30  Car.  2,  st.  2,  c.  1     . 

31  Car.  2,  c.  2,  s.  11  . 
1  W.  &  M.  c.  1  ... 
1  W.  &  M.  sess.  2,  c.  2 


I  W.  &  M.  c.  18,  s.  15 
9  Will.  3,  c.  35     ... 

9  &  10  Will.  3,  c.  77    . 

10  Will.  3,  c.  23  .    .    . 

II  &  12  Will.  3,  c.  7,  s. 


5  Anne,  c.  14,  s.  4 
7  Anne,  c.  12,  s.  3 

,  s.  4 

,  s.  6 


1  Geo.  1,  St.  2,  c.  5 


s.  1 
ss.  ] 
s.  2 
s.  3 


8  Geo.  l,c.  24,  s.  1 
,  s.  6 


12  Geo.  1,  c.  29,  s.  4    . 
2  Geo.  2,  c.  25,  s.  2      . 
7  &  8  Geo.  2,  c.  28,  ss.  8 
9  Geo.  2,  c.  5,  s.  4    . 

12  Geo.  2,  c.  28     .    . 

13  Geo.  2,  c.  19  .  . 
16  Geo.  2,  c.  21,  s.  3 
1 8  Geo.  2,  c.  30  .  . 
18  (Jeo.  2,  c.  34  .  . 
25  Geo.  2,  c.  36    .    . 


4 

-,  8.  8 


25  Geo.  2,  c.  37,  ss.  4,  7 

,  8.  9  . 

12  Geo.  3,  c.  11  ... 
12  (Jeo.  3,  c.  24  .  .  . 
•_'l  Cio.  3,  c.  49,  H.  1     . 


PI- 


PAGE 

126 

130 

89 

130 

10 

eamble    8 
130 
126 
177 
403 
79 
)       80 
33 
27 
72 
72 
72 
158 
56 
57 
56 
56 
80,81 
81, 158 
112 
1(19 
337 
306 
403 
403 
118 
79 
403 
145 
145 
145 
142 
191 
117 


362 
145 


h  2 


TABLE   OF  STATUTES   CITED 


21  Geo.  3,  c.  49,  s.  2  .  . 
28  Geo.  3,  c.  55  ...  . 
30  Geo.  3,  c.  48  ...  . 
33  Geo.  3,  c.  67  .... 

36  Geo.  3,  c.  7,  s.  1   .  . 

,  s.  4  .  . 

,  s.  6  .  , 

37  Geo.  3,  c.  70,  s.  1  .  . 
37  Geo.  3,  0.  123 275 


PAGE 

142 
379 
46 
60 
42,43 
43 
42 
47 


-,  ss.  1, 
s.  2 


39  Geo.  3,  c.  37,  s.  1  .  .  .  . 

39  Geo.  3,  c.  79 

39  Geo.  3,  c.  79,  pi-eamble,  and 

ss.  1,  2,  3 

39  Geo.  3,  c.  79,  s.  5  .  .  .  . 

,  s.  6  .  .  .  . 

,  ss.  8,  9  .  . 

,  s.  13  ... 

39  Geo.  3,  c.  85 27J 


64 
65 

78 
66 

66 
67 

68 
68 
68 


42  Geo.  3,  c.  119,  s.  2 
49  Geo.  3,  c.  126  .  . 
,  s.  1 


146 
103 
103 
104 
104 
104 

',  s.  5  .  .  .  .   105 

52  Geo.  3,  c.  104 275 


-,  s.  li  .  .  . 
-,  s.  3  (cond. ) 
-,  s.  4  .  .  . 


ss.  1,  6 

-,  s.  2 


52  Geo.  3,  c.  143,  s.  6  .  .  . 
52  Geo.  3,  c.  155,  s.  12  .  . 

52  Geo.  3,  c.  156 

,  ss.  1,  2,  3 


53  Geo.  3,  c. 


127,  s.  1 

,  s.  2  . 

,  s.  3  . 


64 

65 

334 

130 

117 

117 

126,  132 

126,  132 

126,  132 

53  Geo.  3,  c.  160 127 

54  Geo.  3,  c.  146 46 

56  Geo.  3,  c.  138,  s.  2   ...   122 

57  Geo.  3,  c.  6 42 

57  Geo.  3,  c.  19,  s.  23   .  .  .    61 

,  s.  25  .  .  .  66,  68 

,  ss.  26,  27  .    67 

,  s.  28  .  .  .    68 

60  Geo.  3  &  1  Geo.  4,  c.  1,  s.  1   63 
60  Geo.  3  &  1  Geo.  4,  c.  8  .  .    70 

1  Geo.  4,  0.  90,  s.  1 78 

1  &  2  Geo.  4,  c.  88,  s.  1  .  .  .   117 
3  Geo.  4,  0.  114  .  . 
■,  s.  1 


4  Geo.  4,  c.  48 


-,  s.  1 

-,  s.  2 


4  Geo.  4,  c.  76,  s.  21 


41,56,  109 
.  .  141 
.  .  362 
.  .  13 
.  .  13 
.  .   213 


5  Geo.  4,  0.  83,  s.  3  .  . 

,  ss.  3,  4,  5 

,  s.  4  . 

,  s.  5  . 

5  Geo.  4,  c.  84  .  .  . 


5  Geo.  4,  c.  113,  s.  2  . 

-,  s.  9  . 

,  s.  10 

,  s.  11 

6  Geo.  4,  c.  50,  s.  61  . 
6  Geo.  4,  c.  78,  s.  25  . 
6  Geo.  4,  c.  92   .  .  . 

6  Geo.  4,  c.  105,  s.  10 

7  Geo.  4,  0.  16,  s.  38  . 
7  &  8  Geo.  4,  c.  18  .  . 
7  &  8  Geo.  4,  c.  28  .  . 


7  &  8  Geo.  4,  c.  29 
7  &  8  Geo.  4,  c.  30 


-,  s.  8 
-,  s.  9 
-,  s.  10 
-,  s.  11 
-,  s.  12 


-,  s.  44 


-,  s.  19 


9  Geo.  4,  c.  31,  s.  14 

,  s.  18 

9  Geo.  4,  c.  55  .  .  . 
9  Geo.  4,  c.  56  .  .  . 
9  Geo.  4,  c.  69  .  .  . 


9  . 
12 
13 


10  Geo.  4,  c.  7,  ss.  28,  29 

,  s.  31  .  . 

_ ,  s.  33  .  . 

,  s.  34  .  . 

,  s.  35  .  . 

,  s.  36  .  . 

,  s.  37  .  . 

1 1  Geo.  4  &  1  Will.  4,  c.  1 
1  Will.  4,  c.  66,  s.  1  .  . 

1  &  2  Will.  4,  c.  37,  s.  9 

1  &  2  Will.  4,  c.  41,  s.  11 

2  Will.  4,  0.  53,  s.  49  .  . 
2  &  3  Will.  4,  0.  59,  s.  19 

4  &  5  Will.  4,  c.  67   .  . 

5  &  6  Will.  4,  c.  62,  s.  21 

6  &  7  Will.  4,  c.  30   .  . 

— ,  s.  40 

c.  85  .  . 


TABLE   OF  STATUTES   CITED 


6  &  7  Will.  4,  c.  85,  s.  7 

,  s.  39 

,  s.  40 

,  s.  41 

7  Will.  4  &  1  Vict.  c.  15,  s 
7  Will.  4  &  1  Vict.  c.  22 

7  Will.  4  &  1  Vict.  c.  23 
7  Will.  4  &  1  Vict.  c.  36,  s 


26 

288, 


7  Will.  4  &  1  Vict.  c.  85,  s, 
7  Will.  4  &  1  Vict.  c.  88,  e 


,  s.  28 

,  s.  29 

,  s.  30 

,  s.  31 

,  s.  36 

,  s.  41 

288, 

,  s.  42 

288,  291,  295, 

,  s.  43 

47 
291, 
1 
q 


-,  s. 
288, 


s.  3 


7  Will.  4  &  1  Vict.  c.  91  .    .64, 

,  s.  1  . 

,  ss.  2,  3 

1  Vict.  c.  81,  s.  1     . 
1  Vict.  c.  90,  s.  5     . 
1  Vict.  c.  91      ... 
1  &  2  Vict.  c.  38,  s.  2 
1  &  2  Vict.  c.  82,  s.  12 

1  &  2  Vict.  c.  105     . 

2  &  3  Vict.  c.  93,  s.  8 

3  &  4  Vict.  c.  9,  s.  1 
-,  s.  3 


3  &  4  Vict.  c.  97,  s.  13 

5  &  6  Vict.  c.  29,  s.  24 

5  &  6  Vict.  c.  39,  s.  6  . 

5  &  6  Vict.  c.  45,  s.  12 

5  &  6  Vict.  c.  51,  88.  1,  2 

5  &  6  Vict.  c.  55,  8.  17 

6  &  7  Vict.  c.  26,  8.  22 
6  &  7  Vict.  c.  96,  8.  3  . 

,  8.    4   . 


7  &  S  Vict. 
7  &  8  Vict. 

7  &  8  Vict. 
8*9  Vict. 

8  &  9  Vict. 
8  &  9  Vict. 


c.  22,  8.  2 
c.  29,  H.  1 
c.   101,  K.  8 
c.  100,  8.  44 
c.   106     .    . 
c.  109     .    . 


11, 


14, 


PAGE 

214 
214 
214 
215 
192 
214 
109 

291 
288 
288 
291 
320 
294 
296 

291 

296 
294 

294 

400 

79 

81 

117 

57 

47 

83 

13 

362 

152 

120 

106 

205 

235 

235 

201 

120 

316 

338 

51 

201 

120 

239 

239 

239 

231 

230 

329 

60 

223 

29 

112 

403 


8  &  9  Vict.  c.  109,  s. 


8  &  9  Vict.  c.  113 


8    . 
17 


s.  4 


PAGE 

144 

303 

110 

110,329 


9  &  10  Vict.  c.  59 45,  46 


s.  4 


10  &  11  Vict.  c.  58 

10  &  11  Vict.  c.  82 

11  Vict.  c.  12,  preamble,  &c., 
s.  3 

,  s.  2 

s.  4  . 

11  &  12  Vict.  c.  42  .    ."    .'    .'    \ 

,  ss.  2,  11, 

12,  22  , 

-(Q.  1)    . 


130 
214 
286 

47 
42 

.   47 
217 


11  &  12  Vict.  c.  59 
11  &  12  Vict.  c.  78 


s.  6 


12  &  13  Vict. 

13  &  14  Vict. 

13  &  14  Vict. 

14  &  15  Vict. 


103,  s.  15 
26  .    .    . 
101,  s.  9 


c.  19,  s. 


14  &  15  Vict.  c.  92 
14  &  15  Vict.  c.  99 


11 

12 


15 
16 


415 

.       416 

.       286 

.       420 

.       329 

.       273 

78 

.       205 

.       204 

.      204 

.      286 

110,  HI 

.       Ill 

106 


14  &  15  Vict.  c.  100,  s.  29,  113,  116, 

119,  132,  133,  305,306 

15  &  16  Vict.  c.  56,  s.  15     . 
,  s.  16     . 

16  &  17  Vict.  c.  99  .    .    .    . 


s.  12 


87 
87 
13 
14 


16  &  17  Vict.  c.  119,  preamble, 
and  ss.  1,  2 

17  &  18  Vict.  c.  36 

17  &  18  Vict.  c.  38,  s.  2  .    .    . 
17  &  18  Vict.  c.  102,  != 


17  &  18  Vict.  c.  138,  s. 

18  &  19  Vict.  c.  63  .    . 


,8.   18 

,  8.  22 

19  &  20  Vict.  c.  119,  8.  9 

20  &  21  Vict.  c.  3     .    .    . 


20  &  21  Vict.  c.  83,  s. 

21  &  22  Vict.  c.  90,  8. 
,  8. 

22  &  23  Vict.  c.  35,  a. 

23  &  24  Vict.  c.  38,  h.  8 

24  &  25  Vict.  c.  94,  h.  1 


1  . 
38 
40 
24 


114 
.       109 
144 
100,  101, 
102 
101,  102 
102 
143 
274 
274 
274 
215 
I,  i:{ 
II 
I  .-{3 

87 
323 
304 
304 
2H2 


TABLE    OF  STATUTES   CITED 


24  &  25  Vict.  c.  94,  ss.  3 
24  &  25  Vict.  c.  95  .    . 
24  &  25  Vict.  c.  96  .    . 
,  s.  1 


s.  2 
s.  3 
s.  4 
s.  7 
s.  8 
s.  9 
s.  10 
s.  11 
s.  12 
s.  13 
s.  16 
s.  17 
s.  18 
s.  19 
s.  21 
s.  23 
s.  24 
s.  25 
s.  26 

s.  27 
s.  28 
s.  29 
s.  30 
s.  31 
s.  32 
s.  33 

s.  36 

s.  38 
s.  39 
s.  40 
s.  42 
s.  43 
s.  44 
s.  45 
s.  46 
s.  47 
s.  48 
s.  49 
s.  50 
s.  51 
s.  52 
s.  53 
s.  54 
s.  55 
s.  56 
s,  57 
s.  58 


PAGE 

37 
.  13,  14 
.   294 

282,  287, 

291,  376 

.   376 

.   262 

.   286 

14, 286 

286, 294 

.   286 

.   289 

286, 289 

377 

376. 377 
.   377 

376. 378 
251,295 

.  295 
.  251 
.   251 

376, 377 
.   377 

293,  294, 

295 

.   287 

.   292 

.   288 

292 

292, 294 

293, 294 
.  286, 

293,  294 
.  286, 

293,  294 
.   294 

255, 308 

279,  289 
.  279 
.  279 
.  280 
.  281 
.  280 
.  280 
.  280 
.   281 

280, 283 
284 
.  283 
.  282 
.  284 
.  284 
.  284 
.  284 
.   285 


24  &  25  Vict.  c.  96 


24  &  25  Vict.  c.  97 


s.  59 
s.  60 
s.  61 
s.  62 
s.  63 
s.  64 
s.  67 
s.  68 

s.  69 
s.  70 
s.  73 

s.  74 
s.  77 
s.  78 
s.  79 

s.  80 
s.  81 
s.  82 
s.  83 
s.  84 
s.  85 
s.  88 
s.  89 
s.  90 
s.  91 
s.  95 
ss.  98- 
s.  101 
s.  117 
s.  119 

s.  1 
s.  2 
s.  3 
s.  4 
s.  5 
s.  6 
s.  7 
s.  8 
s.  9 
s.  10 
s.  11 
s.  12 
s.  13 
s.  14 
s.  15 
s.  16 
s.  17 
s.  18 
s.  19 
s.  20 
s.  21 
s.  22 


271, 


PAGE 

285 

290 

290 

290 

290 

290 

290 

278, 

290 

.   291 

.   291 

.   289 

.   291 

.   312 

311,312 

.267,311, 

312 

314 

315 

315 

315 

315 

316 

297 

301 

297 

320 

320 

37 

320 

14,  18 

9 

294,  364 
364 
364 
365 
365 
365 
367 
368 
368 
365 
368 
57 
58 
373 
365 
370 
368 
365 
370 
369 
372 
372 
374 


11 


TABLE   OF  STATUTES   CITED 


24  &  25  Vict.  c.  97 


24  &  25  Vict.  c.  98 


s.  26 
s.  27 
s.  28 
s.  29 
s.  30 
s.  31 
s.  32 
s.  33 
s.  34 
s.  35 
s.  30 
s.  37 
s.  39 
s.  40 
s.  42 
s.  43 
s.  44 
s.  45 
s.  46 
s.  47 
s.  48 
s.  49 
s.  50 
s.  51 
s.  54 
ss.  56- 
s.  73 
s.  75 

s.  1 

s.  2 

s.  3 

s.  4 

s.  6 

s.  7 

s.  8 

s.  9 

s.  10 

s.  11 

s.  12 

s.  13 

8.  14 

s.  15 

s.  16 

8.  17 

8.  18 

8.  19 

8.  20 

8.  21 

8.  22 

8.  23 

8.  24 

8.  25 

8.  26 


73 


0, 


PAGE 

374 

365 

368 

370 

371 

366 

371 

371 

366 

374 

366 

375 

374 

375 

369 

365, 367 

365, 367 

.   368 

368 

.   372 

.   367 

.   372 

.   369 

280,  369 

.   375 

.   373 

37 

.  14,  18 

9 

.   334 

.   330 

330, 333 

.   351 

.   337 

.   337 

.   330 

.   331 

.   343 

343,  344 

.   344 

322,  331 

.   340 

.   340 

340 

341 

341 

342 

342 

331 

331 

331 

.   331 

.   335 

331 

.   334 


24  &  25  Vict.  c.  98 


24  &  25  Vict.  c.  99 


24  &  25  Vict.  c.  100 


27 

336 

28 

336, 

337 

29 

337 

30 

332 

31 

334 

32 

338 

33 

334 

34 

352 

35 

337 

36 

332 

37 

333 

38 

335 

45 

329 

48 

333 

49- 

51 

37 

51 

14,  18 

3 

54 

361 

1 

354 

•> 

355 

3 

355 

4 

356 

6 

357 
355 

7 
8 

355 
358 

9 

358 

10 

358 

11 

358 

12 

359 

13 

359 

14 

357 

15 

359 

16 

359 

18 

357 

19 

357 

20 

359 

21 

360 

22 

358 

24 

355 

25 

356 

30 

355, 

357, 
359 

35 

361 

35- 

i8 

37 

38 

.  14,  IS 

3 

191 

4 

193 

,  194 

5 

192 

11 

192 

400 

12 

1 92 

1 93 

13  . 

1 92 

1 93 

14 

1 92 

193 

15 

192 

,  193 

16 

193 

17 

197 

TABLE   OF  STATUTES   CITED 


24  &  25  Vict.  c.  100,  s 


18 

19 

20 

21 

22 

23 

24 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

41 

47 

48 

52 

53 

54 

55 

56 

57 

58 

59 

60 

61 

62 

63 

64 

67 

67- 

70 

71 

4 


24  &  25  Vict.  c.  109 

25  Vict.  c.  18,  s.  1 

,  s.  2   .  . 

25  &  26  Vict.  c.  53,  ss.  105, 
25  &  26  Vict.  c.  67,  ss.  44, 
25  &  26  Vict.  c.  89,  s.  166 

25  &  26  Vict.  c.  103,  s.  40 

26  &  27  Vict.  c.  44,  s.  1 
26  &  27  Vict,  c   73,  s.  14 
26  &  27  Vict.  c.  87,  s.  9 
26  &  27  Vict.  c.  89,  s.  4 

26  &  27  Vict.  c.  103,  s.  1 

27  &  28  Vict.  c.  27,  s.  12 
27  &  28  Vict.  0.  47,  s.  2 


TAOE 

195 
193 
199 
196 
196 
198 
199 
00,  221 
221 
196 
196 
198 
200 
197 
197 
200 
201 
205 
204 
205 
205 
204, 206 
209 
205 
215 
215 
216 
219 
211 
197 
199 
194 
131 
31,204 
207 
373 
193 

37 
9 

14 

372 

8 


138 
45 


304 

304 

315 

338 

9,279 

351 

315 

223 

307 

87 

1,3,  14, 

338 


28  &  29  Vict.  c.  121,  s.  3 
28  &  29  Vict.  c.  124,  s.  8 
28  &  29  Vict.  c.  126   .    . 


PAGE 

.      372 
351,352 
4 


s.  4 

118 

s.  6 

4 

s.  17 

4 

s.  37 

118 

Sch.  I. 

6 

3 

redrawn 


-,  Sch.  I.  16 

-,  Sch.  I.  31 

-,  Sch.  I.  34 

-,  Sch.  I.  35 

-,  Sch.  I.  38 
-,  s.  17 
-,  s.  67 


29  &  30  Vict.  c.  108,  s.  15 

29  &  30  Vict.  c.  117    .    . 
,  s.  14 

30  &  31  Vict.  c.  102,  s.  49 

30  &  31  Vict.  c.  131,  s.  35 

31  Vict.  c.  24 

,  ss.  2,  16  .    . 


31  &  32  Vict.  c.  37,  s.  4  . 
31  &  .32  Vict.  c.  116  .  . 
,  s.  1      . 

31  &  32  Vict.  c.  119,  s.  5 

31  &  32  Vict.  c.  121,  s.  14 
32&33  Vict.  e.  62,  s.  11 

,  s.  12 

,  s.  13 

,  s.  14 

32  &  33  Vict.  c.  73,  s.  20 

33  &  34  Vict.  c.  23   .  . 

,  s.  2 

,  s.  3 

,  s.  4 

,  s.  7 

,  s.  8 


6 

6 

18 

315 


-,  ss.  9-29  inc 
-,  s.  31 


8   33  &  34  Vict.  c.  58,  s.  3 


s.  6 


33  &  34  Vict.  c.  71 
33  &  34  Vict.  c.  90 


s.  4 

s.  5 

s.  6 

s.  7 

s.  8 

s.  9 

s.  10 

s.  11 


16 

.   101 

.   351 

46,  191 

.  46,  79 

.   329 

.   320 

263, 264, 

272 

.   315 

87 

.   379 

.   379 

.   304 

.   383 

92 

13,401 

12 

11 

11 

13 

12 

12 

46 

331, 333 

.   351 

329,  331 

331,  333 

73 

74 

74 

77 

74 

74 

77 

76 

74 


TABLE    OF  STATUTES   CITED 


33  &  34  Vict.  c. 

33  &  34  Vict.  c. 

34  &  35  Vict.  c. 
34  &  35  Vict.  c. 


90,  s. 
93  . 
31,  s. 
32   . 


34  &  35  Vict. 
34  &  35  Vict. 


78,  £ 
108 


15 


10 


34  &  35  Vict.  c.  112 


35  &36  Vict.  c.  19,  s, 


s.  /  . 
I  ss.  7, 
,  s.  7  . 
s.  8  . 
s.  12 
s.  15 
s.  20 
2 

;.  9, 


10 


10 


35  &  36  Vict.  c.  33,  s.  3  .  . 
,  s.  24  . 

36  &  37  Vict.  c.  38,  s.  3  .  . 
36  &  37  Vict.  c.  71,  s.  13  . 

36  &  37  Vict.  c.  91  .    .    .  . 

37  &  38  Vict.  c.  35    .    .    .  . 

37  &  38  Vict.  c.  36,  s.  1  .  . 

38  Vict.  c.  17,  s.  81  ... 
38  Vict.  c.  22,  s.  10  ... 
38  &  39  Vict.  c.  24,  s.  1  . 

,  s.  2  .  . 

38  &  39  Vict.  c.  25,  s.  4  .  . 

,  s.  5  .  . 

38  &  39  Vict.  c.  51    .    .    .  . 

38  &  39  Vict.  c.  63,  ss.  3,  4 

38  &  39  Vict.  c.  86   .    .    .  . 

,  s.  3  .  . 

,  s.  4  .  . 

,  s.  5  .  . 

,  s.  6  .  . 

,  s.  7  .  . 


38  &  39  Vict.  c.  87,  s, 

38  &  39  Vict.  c.  98,  8. 

39  &  40  Vict.  c.  36  . 


9 

101 

117 

,  8.  188 

,  8.  189 

,8.  193 

40  V^ict.  c.  2,  8.  10   .    .    . 

41  &  42  Vict.  c.  33,  s.  34 

42  &  43  Vict.  c.  21,  s.  10 
42  &  43  Vict.  c.  49,  s.  1 1 
42  &  43  Vict.  c.  54,  s.  1  . 

42  &  43  Vict.  c.  55,  s.  2  . 

43  &  44  Vict.  c.  9     .    . 

43  &  44  Vict.  c.  45,  h.2  .  JO 

44  &  45  Vict.  c.  58,  h.  II I 
,  H.  155 

45  4;  46  Vict.  c.  37,  h.  12 


PAGE 

73 
247 
391 
205 
392 
315 
152 
152 
154 
15 

8,  15 
205 
154 

7,  15 
85 


03, 339 

352 

153 

372 

127 

214 

351 

329 

295 

316 

90,  278 

51 

308 

85 

147 

393 

391 

392 

391,  392 

392 

392 

393 

304 

147 

104 

58 

I,  59 

195, 196 

331,343 

87 

58,  59 

103 

14 

3,  7 

2.S2 


59, 


04, 


205 
92 
92 

87 


45  &  46  Vict.  c.  50,  s.  78 

,  s.  1 1 7 

,  s.  124 

45  &  46  Vict.  c.  56,  s.  22 

,  s.  23 

45  &  46  Vict.  c.  75      .    . 


250 


46  Vict.  c.  3      .... 

,  ss.  2-6,  9 

46  &  47  Vict.  c.  45,  s.  2 
s.  3 
s.  1 
s.  2 
s.  6 


-,  s.  12  .  248, 
-,  s.  16      248, 


46  &  47  Vict.  c.  51 


46  &  47  Vict.  c.  52 


47  &  48  Vict.  c.  76 


48  &  49  Vict.  c.  69 


Sch.  in. . 

s.  31 
s.  149 
s.  163 


,  s.  3 

s.  4  . 

s.  11 

s.  19 

s.  20 

s.  2  . 

s.  3  . 

s.  4  . 

s.  5  . 

s.  6  . 

s.  7  . 

s.  8  . 

s.  11 

s.  13 

s.  2  . 


48  &  49  Vict.  c.  75 

49  Vict.  c.  14,  8.  2   . 

50  &  51  Vict.  c.  25  . 
50  &  51  Vict.  c.  28,  s.  2  .     346, 


102 


379, 
381, 

135, 
92, 


207, 


,  s.  3  . 

,  s.  4  . 

,  s.  5  . 

,  s.  6  . 

,  s.  7  . 

,  .s.  8  . 

,   8.    1  1 

,   8.     18 

50  &  51    Vict.  c.  46,   sa.    1 

11,  13 

50  &  61  Vict.  c.  55,  h.  29 

,  8.  39 

5(1  k  51  Vict.  c.  57  .    .    . 


344 


PaOE 

102 
312 
312 
373 
294 
23 

263, 
320 

263, 
320 
198 
363 
360 
354 
102 
101 
352 
352 
383 
380 

380, 
382 
150 
150 
339 
295 
295 
135 
135 

209, 
210 
209 
136 
218 
218 
131 
142 
205 
214 
17 

347, 
348 

,  345 
346 
346 
347 
345 
345 
34  S 
345 


13. 


3!H 
I  10 
1 22 
3S() 


TABLE   OF  STATUTES   CITED 


50  &  51  Vict.  c.  58,  s. 
50  &  51  Vict.  c.  71,  s. 


51  &  52  Vict.  c.  43,  s. 
51  &  52  Vict.  c.  46  . 
51  &  52  Vict.  c.  64,  s. 


52  Vict.  c.  10 


52  &  53  Vict. 
52  &  53  Vict. 
52  &  53  Vict. 


8    . 
11  . 
10,  s. 
49,  s. 
52,  s. 


52  &  53  Vict. 
52  &  53  Vict. 


63,  s. 
69,  s. 


s.  'I'J,'^ 


53  Vict.  c.  5,  s.  7  . 
40 
197 
215 
222 
s.  231 
s.  233 
s.  237 
s.  315 
s.  316 
s.  317 
s.  318 
s.  319 
s.  321 
s.  322 
s.  324 
s.  325 
53  &  54  Vict.  c.  21,  s. 


53  &  54  Vict.  c.  45,  s. 
53  &  54  Vict.  c.  59,  s. 

53  &  54  Vict.  c.  71,  s. 
,  s. 

54  &  55  Vict.  c.  38  . 
,  s. 


PAOE 

32 

.  .   329 

8 

.  .    93 

10 

.  .    93 

11 

.  .    93 

lb 

0   .   337 

.  .   106 

3 

.  .   235 

4 

.  .   236 

8 

.  .   237 

.  .   110 

.  110,  338 

.  .   338 

7 

.  .   106 

22 

.  .   106 

1 

.  .    48 

2 

.  .  49,  50 

3 

.  .   106 

1 

.  .    98 

v> 

.  .    98 

7 

.  .    98 

.  .   226 

.  .   226 

226 

.   226 

.  .   226 

226 

.  .   226 

.  .   226 

224 

.  .   224 

224 

.  .   225 

.  .   225 

.  .   225 

.  .   225 

.  .   225 

224 

.  .    93 

14 

.  .    94 

.  111,351 

2^ 

\    .    .       147 

3 

.  .   380 

26 

.  .   382 

.  .   348 

13 

.  335, 348 

14 

.  .   349 

15 

.  .   350 

54  &  55  Vict.  c.  38,  s. 
54  &  55  Vict.  c.  46,  s. 

,  s. 


IS 
10 
]2 

54  &  55  Vict.  c.  69,  s.  1  . 

,  s.  8  . 


55  &  56  Vict.  c. 
55  &  56  Vict.  c. 


19  . 
65,  s. 


56  &  57  Vict.  c.  48  . 

56  &  57  Vict.  c.  54  . 

57  &  58  Vict.  c.  41,  s. 

,  ss. 

57  &  58  Vict.  c.  60,  s. 


58  &  59  Vict.  c.  21 

59  &  60  Vict.  c.  52 
61  &  62  Vict.  c.  41, 


63  &  64  Vict.  c.  48,  s. 
1  Edw.  7,  c.  10  .  . 


1  . 

6,  '3 

16 
66 
67 
70 
104 
121 
147 
180 
187 
188 
197 
241 
248 
282 
398 
419 
422 
457 
535 
564 
607 
667 
680 
695 
696 


4  . 
6  . 

28 


LIST   OF   ABBREVIATIONS 

(OMITTING   REFERENCES    TO   THE    LAW   REPORT.S) 


A.  &  E.    . 

B.  &  A.  . 
B.  &  Ad.  . 
B.  &  B.  . 
B.  &  C.     . 

B.  &  P.     . 
Bell,  C.  C. 
Brooke's  Abt. 
Burr. 

Cald. 
Camp. 
Car.  &  Mar. 

C.  &  K.  . 
CI.  &  F.  . 
C.  L.  C.  . 
Co. 

Cox,  C.  C. 
C.  &  P.     . 

1).  &  B.  . 
1).  &  P.     . 

I  )en. 
l>oug. 

Ha.  . 

Hast,  P.  (J. 
K.  &  B.  . 
K.  B.  & 
Ksp. 


K. 


F.  &  F.     . 
FoHter 

( Jen.  View  Cr.  L 

Hale,  P.  C. 
Hawk.  P.  (;. 
HiHt.  Cr.  I^w 


Adolphus  &  Ellis. 

Bamewall  &  Alderson. 
Bamewall  &  Adolphus. 
Broderip  &  Bingham. 
Bamewall  &  Cresswell. 
Bosanquet  &  Puller. 
Bell's  Crown  Cases. 
Brooke's  Abridgment. 
Burrow's  Reports. 

Caldecott's  Settlement  Cases. 
Campbell's  Reports. 
Carrington  &  Marshman. 
Carrington  &  Kirwan. 
Clark  &  Finnelly. 
Criminal  Law  Commission 
Coke's  Report. 
Cox's  Criminal  Cases. 
Carrington  &  Payne. 

Dearsly  &  Bell. 
Dearsly  &  Pearce. 
Dennison's  Crown  Cases. 
Douglas. 

East's  Reports. 

East's  Pleas  of  the  Crown. 

Ellis  &  Blackburn. 

Ellis,  Blacklnirn.  &  Ellis. 

Espinasse. 

Foster  4  Finlason. 
Foster's  Crown  Cases. 

Stephen's  General  View  of  the  Criminal  Law. 

Hale's  Pleas  of  the  Crown. 

Hawkins's  PlcaH  of  tlie  Crown  (Curwood's  edition). 

Slcphen's  History  of  the  Criminal  Law. 


LIST   OF  AnBREVIATIONS 


Inst.  .  .  Coke's  Institutes. 

Kol.  .  .  Kelynge. 

L.  &  C.     .  .  Leigli  &  Cave. 

Lew.  .  .  Lewin's  Crown  Cases. 

L.  J.  (M.C. )  .  Law  Journal,  Magistrates' Cases. 

L.  J.  (Q.  B. )  .  Law  Journal,  (Queen's  Bench. 

L.  R.  H.  L.  .  Law  Reports,  House  of  Lords. 

L.  R.  P.  C.  .  Law  Reports,  Privy  Council. 

L.  T.  (N.S.)  .  Law  Times,  New  Series. 

Mod.  .  .  Modern  Reports. 

Moo.  .  .  Moody's  Crown  Cases. 

Moo.  &  R.  .  Moody  &  Robinson. 

M.  &  S.     .  .  Maule  &  Selwyn. 

N.  R.        .  .  New  Reports. 

Rep.  C.  L.  C.  .  Report  of  the  Criminal  Law  Commission. 

W.  Rob.   .  .  W.  Robinson's  Admiralty  Reports. 

R.  &  M.    .  .  Rjan  &  Moody. 

Roscoe,  Cr.  Ev.  .  Roscoe's  Criminal  Evidence. 

R.  &  R.     .  .  Russell  &  Ryan. 

Russ.  Cr.  .  .  Russell  on  Crimes,  5th  edition. 

Salk.  .  .  Salkeld's  Reports. 

S.  L.  C.     .  .  Smith's  Leading  Cases. 

Starkie,  N.  P.  .  Starkie's  Nisi  Prius  Reports. 

Steph.  Com.  .  Stephen's  Commentaries. 

St.  Tr.       .  .  State  Trials. 

Str.  .  .  Strange's  Reports. 

T.  R.         .  .  Term  Reports. 

Ves.  .  .  Vesey's  Reports. 

Viner's  Abt.  .  Viner's  Abridgment. 

W.  R.       .  .  Weekly  Reporter. 

Wils.         .  .  Wilson's  Reports. 


CONTENTS 


PART  PAflK 

I.  Prelimtxary 1 

II.  Offences  AGAINST  Public  Order — Internal  and  External  .  42 

III.  Abuses  and  Obstructions  of  Public  Authority 87 

IV.  Acts  Injurious  to  the  Public  in  General 1*23 

V.  Offences  against  the  Person,  the  Conjugal  and  Parental 

Rights,  and  the  Reputation  of  Individuals   ....  156 
Xl.  Offences  ag.ainst  Rights  of  Property  and  Rights  arising 

out  of  Contracts 241 


PART   I 

PRELIMINARY 


E.\planation  of  Terms 


CHAPTER  I 
OF  PUNISHMENTS 

ART. 

1.  Punishments 3 

2.  Punislinient  of  Death 3 

'.\.  Punishment  of  Penal  Servitude 3 

4.    Punisiinient  of  Imprisonment I 

'i.  Impri.soiiment  to  he  Separate I 

li.   Har<l  Lalxjur I 

7.   Imprisonment  \sitiiout  Hani  Lal>our T) 

K.    ImpriHonmcnt  as  an  Offender  of  the  First  Division H 

!•.   Treatment  of  Prisoners  in  particular  cases U 

10.  Detention  in  a  Reformatory 7 

I  I.    Su)»je<:tir)n  to  I'olici;  Supervision 7 

12.    I'unishirient  of  W'iiipping !^ 

I.T    Fine I" 

11.  Putting  under  Hccognizanees      I" 


CONTENTS 


CllAlTKK  II 

CLASSIFICATIOX  OF  CRIMES  AND  GENERAL  /PROVISIONS 
AS  TO   THEIR  PUNISHMENT 

ART.  PAHK 

15.  Treason,  Felony,  anil  Misdemeanour II 

16.  Consequence  of  a  Conviction  of  Treason  or  Felony 11 

17.  Recording  Sentence  of  Death 13 

18.  Punishment  for  Felony  if  no  Express  Punishment  provided — 

Felonies  under  tlie  Consolidation  Acts 13 

19.  Previous  Convictions 14 

20.  Special  Offences  in  the  Case  of  Persons  Twice  Convicted    ...  15 

21.  Punishment  of  Persons  under  Sixteen  Years  of  Age 16 

22.  Probation  of  First  Offenders 17 

23.  Punishment  of  Misdemeanours 18 

24.  Cumulative  Punishments 18 


CHAPTER  III 
GENERAL   EXCEPTIONS 

25.  Definitions  subject  to  Exceptions 20 

26.  Children  under  Seven 20 

27.  Childien  between  Seven  and  Fourteen 20 

28.  Insanity 20 

29.  Presumption  of  Sanity 22 

30.  Drunkenness 22 

31.  Married  Women 23 

32.  Compulsion 24 

33.  Necessity 24 

34.  Ignorance  of  Law 26 

35.  Ignorance  of  Fact 27 


CHAPTER  IV 

PARTIES  TO  THE  COMMISSION  OF  CRIMES— PRINCIPAL 
AND  ACCESSORY 

36.  Principals  in  First  Degree 30 

37.  Innocent  Agent 30 

38.  Principals  in  the  Second  Degree 31 

39.  Common  Purpose      32 

40.  Accessories  before  the  Fact 33 

41.  AVhere  Crime  suggested  is  committed  in  a  Different  Way  ...  34 

42.  Wlien    Crime    committed    is  piobable  Consequence    of    Crime 

suggested       34 


CONTENTS 


AKT.  I'AOE 

43.  Where  Instigation  is  coiintermamled 35 

44.  Instigation  to  commit  a  Crime  ditTeient  from  the  one  committed  36 
40.   Accessories  and  Principals  in  Second  Degree  treated  as  Princi- 
pals in  First  Degree 36 

46.  Accessories  after  the  Fact 36 

47.  Punishment  of  Accessories  after  the  Fact  in  General  and  under 

the  Consolidation  Acts 37 


CHAPTER  V 

DEGREES  IX  THE  COMMISSION  OF  CRIME— INCITEMENT— 
CONS  PI  R  A  C  Y~A  TTEMP  TS 

48.  Incitement  to  commit  a  Crime 39 

49.  Conspiracy  to  commit  a  Crime 39 

50.  Definition  of  Attempts 39 

51.  Attempt — Misdemeanour 41 


PART   II 

OFFENCES    AGAINST   PUBLIC   ORDER— INTERNAL 
AND    EXTERNAL 


CHAPTER  VI 

HIGH  TREASON,  TREASONABLE  FELONIES,  AND  ASSA  ULTS 

ON  THE  KING,   DISCLOSING    OFFICIAL   SECRETS,  MIS- 
APPLYING  MARKS  OF  A  PUBLIC  DEPARTMENT 

52.  High  Treason  by  imagining  the  King's  Death 42 

53.  What  amounts  to  imagining  the  King'.s  Death 42 

54.  High  Treason  by  levying  War 43 

55.  High  Treason  hy  a<lliering  to  the  King's  F-neniio.s 44 

56.  Adherence  to  a  I)e  Facto  King  not  Treason 44 

57.  Killing  the  Kingw  Wife  <>v  .Son 44 

58.  When  Words  are  TreuHon 44 

59.  Violating  the  King's  Wife,  kr.       15 

60.  Killing  the  Chancellor,  *<■ 15 

61.  PuniHhnicnt  for  TreaHon  .                                                             .     .  •'> 

62.  All  PritieipaU  in  TreuHon     ....  '<• 

63.  Trcaw>nablc  FclonicH 17 

64.  Inciting  to  .Mutiny .         .  17 


CONTENTS 


ART.  I'AOE 

65.   Disclosure  of  OiHcial  Iiifoinuition 48 

6(i.    Breadi  of  Official  Trust 1!) 

67.  Incitement  to  Disclosure  of  Official  Infornialion  and  Breach  of 

Official  Trust 50 

68.  Misapplication  of  the  Mark  of  a  Public  Department 51 

69.  Assaults  on  the  King 51 

70.  Contempts  against  the  King 52 

71.  Solemnising  or  assisting  at  Marriage  of  a  Member  of   the  Royal 

Family 52 


CHAPTER  VII 

AFFRAYS,  UNLA  WFUL  ASSEMBLIES,  ROUTS,  RIOTS,  TUMUL- 
TUOUS PETITIONING,  AND   UNLA  WFUL  DRILLING 

72.  Sending  Challenges  and  provoking  to  Fight 54 

73.  Going  Armed  so  as  to  cause  Fear 54 

74.  Afiray •    •    •  ^^ 

75.  Unlawful  Assembly 55 

76.  Routs 56 

77.  Riots      56 

78.  Preventing  Reading  Proclamation  and  continuing  to  Riot  after 

Proclamation 56 

79.  Riotous  Demolition  of  Houses,  &c. 57 

80.  Riotous  Damage  of  Houses,  &c 58 

81.  Persons  Assembled  in  order  to  Smuggle 58 

82.  Three  Persons  Armed  in  Pursuit  of  Game  by  Night 60 

83.  Riotously  preventing  the  Sailing  of  Ship 60 

84.  Forcible  Entry  and  Detainer 61 

85.  Political  Meetings  in  Westminster 61 

86.  Procuring  Signatures  to  Petition  without  Authority  and  Tumul- 

tuous Petitioning 62 

87.  Unlawful  Drilling 63 

CHAPTER  VIII 

OFFENCES  AGAINST  INTERNAL  TRANQUILLITY  BY  UN- 
LAWFUL ENGAGEMENTS  AND  COMBINATIONS  AND 
CONFEDERA  CIES 

88.  Unlawful  Oaths.     Oaths  to  commit  Murder  or  Treason      ...  64 

89.  Other  Unlawful  Oaths 64 

90.  Compulsion,  how  far  a  Defence 65 

91.  Unlawful  Clulis  and  Societies 66 

92.  Quakers  and  Religious  and  Charitable  Societies  excepted  ...  67 

93.  Punishment  of  Members 68 

94.  Permitting  Meetings  of  Unlawful  Clubs 68 


COXTENTS 


AKT.  PAOK 

95.  Jesuits  and  Monks 68 

96.  Seditious  Words  and  Libels 70 

97.  Seditious  Conspiracy 70 

98.  Seditious  Intention  Defined 70 

99.  Presumption  as  to  Intention 71 


CHAPTER  IX 

OFFEXCES  AOAIXST  EXTERXAL  PUBLIC  THAXQUILLITY 
—OFFEXCES  AGAIXST  FOREIGX  XATIOXS 

100.  Violation  of  Ambassadors'  Privileges 72 

101.  Arrest  of  Ambassador 72 

102.  Punishment 72 

103.  Libels  on  Foreign  Powers 73 

104.  Interference  in  Foreign  Hostilities 73. 

105.  Ships,  &c.,  referred  to  in  Article  104  to  be  forfeited    ....  75 
irt6.  Increasing  Force  of  Ships  for  Foreign  Belligerents  and  Pro- 
curing Enlistment  by  Misrepresentation 76 

IijT.   Presumption  of  Knowledge  of  Purpose  for  which  Ship  is  built  77 


CHAPTER  X 

OFFEXCES  AGAIXST  PERSOXS  OX  THE  HIGH  SEAS- 
PI  R  A  C  Y—SLA  I  '£■-  TRA  DIXG 

ItiS.  Piracy      78 

109.   Piracy  with  Violence 79 

1  l«i.   Committing  Acts  of  Hostility  under  Foreign  Commission     .    .  79 

111.   Adhering  on  the  Sea  to  the  Kings  Enemies 79 

\\-l.    Boarding  Ships  and  Tlirowing  Cargo  Overboard 80 

ll.S.   Masters  and  Seamen  Favouring  Pirates 80 

114.   Ti"uding  with  Pirates  and  Conspiring  witli  tliem 81 

11.').   Punishment  for  Statutory  Piracies 81 

116.  Not  Fighting  Pirates 81 

1 1 7.  Slave-trading  Defined S'2 

lis.    Piratical  Slave-tra<ling 83 

119.   Punishment  of  Slave-trading *  sj 

IJn.   Serving  on  a  Slave-ship,  Felony S4 

\-\.   Serving  on  a  Slave-sliip,  MisdemeaMoiir  .  fS') 

\11.    Kidnapping  Pacific  Ihlanders .85 


CONTENTS 


PART   III 

ABUSES   AND   OBSTRUCTIONS   OF   PUBLIC 
AUTHORITY 


CHAPTER  XI 

ABUSES  OF  AUTHORITY,  OPPRESSION,  EXTORTION, 
FRAUD,  NEGLECT  OF  DUTY,  REFUSAL  TO  ACT 

ART.  PACK 

123.  "  Public  Officer  "  detined 87 

124.  Extortion  and  Oppression  by  Public  Officers 88 

125.  Illegally  Imprisoning  Subjects  Beyond  the  Seas 89 

126.  Frauds  and  Breaches  of  Trust  by  Officers 90 

127.  Neglect  of  Official  Duty 90 

128.  Offences  by  Soldiers 92 

129.  Off'ences  by  Post-office  Officials 92 

130.  Offences  by  a  Sheriff",  &c.       93 

131.  Off"ences  by  a  Coroner 93 

132.  Offences  by  Inland  Revenue  Officers,  &c 93 

133.  Refusal  to  serve  an  Office      94 


CHAPTER  XII 
DISOBEDIENCE  TO   LAWFUL  ORDERS 

134.  Disobedience  to  a  Statute 95 

135.  Disobedience  to  Lawful  Orders  of  Court,  &c 95 

CHAPTER  XIII 
BRIBERY  AND  CORRUPTION— SALE  OF  OFFICES 

13G.  Judicial  Corruption 97 

137.  Corruption  of  other  Public  Officers 97 

138.  Corruption  of  Public  Bodies 98 

139.  Embracery 99 

140.  Definition  of  Bribeiy  of  Voters 100 

141.  Definition  of  Undue  Influence 101 

142.  Definition  of  Treating 102 

143.  Punishment  of  Bribery  at  Certain  Elections 102 

144.  Off'ences  at  Elections 103 

145.  Definition  of  Office 103 

146.  Selling  Offices 104 

147.  Making  Interest  for  Offices  for  Reward 104 


COXTENTS 


CHAPTER  XIV 

MISLEADING  JUSTICE— FERJ CRY— FALSE  SWEARING- 
SUBORN  A  TION 

ART.  PAOE 

148.  Perjury  defined 106 

149.  Subornation  of  Perjury 108 

150.  Pimishmeut  of  Perjury  and  Subornation 109 

151.  False  Swearing 109 

152.  Forging  Instruments  of  Evidence  and  tendering  them  in  Proof.  1 10 

153.  Officers  giving  False  Certificates HI 

154.  False  Entries  as  to  Copyright Ill 

155.  False  Declaration,  Personation,  &c. ,  to  obtam  a  Pension  under 

the  Police  Act Ill 

156.  Maintenance 112 

157.  Conspiracy  to  defeat  Justice — Dissuading  Witnesses  from  Testi- 

fying        118 

158.  Intimidation  of  Witnesses  before  a  Royal  Commission       ...  113 


CHAPTER  XV 

ESC  A  PE— RESCUE— PRISON-BREA  CH— MISPRISIONS— 
COMPOUNDING  OFFENCES 

159.   Voluntary  Permission  bj' Officers  of  Escapes  by  Prisoners   .    .  115 

16' I.   Negligent  Permission  by  Officers  of  Escapes  b}'  Prisoners     .    .  115 

161.  Sheriff  Procuring  Concealment  or  Permitting  Escape     ....  116 

162.  Rescue  defined 116 

163.  Quality  of  Offence  of  Rescue 116 

164.  Felonious  Rescues 117 

165.  Rescuing  Murderers 117 

166.  Assisting  Escape  of  Prisoners  of  War 117 

167.  Assisting  Escape  from  a  Constable  or  Peace  Officer 118 

168.  Helping  to  Escape  from  Prison 118 

1 69.  Escape  by  Persons  ui  Custody 119 

17<).   Breaking  Prison      119 

171.  Kscaping  from  (Jcrtain  Prisons 120 

172.  Poundbreach 121 

173.  Transports  or   Persons  sentenced   to  Penal  Servitude  being  at 

Large 121 

171.    Misprision  of  Tieason 121 

175.  Misprision  of  Felony 122 

176.  Agreement  not  to  Prosecute ....  122 

177.  (yonijiounding  Penal  Actions ....  122 


c  2 


CONTENTS 


PART    IV 
ACTS  INJURIOUS  TO  THE  PUBLIC  IN  GENERAL 


CHAPTER  XVI 
UNDEFINED  MISDEMEA  NO  URS 

ART.  PAGE 

178.  Acts  involving  Public  Mischief 123 


CHAPTER  XVII 
OFFENCES  AGAINST  RELIGION 

179.  Blasphemy  defined — Alternative  Definitions 125 

180.  Heresies 126 

181.  Denying  Truth  of  Christianity,  &c 12? 

182.  Depraving  the  Lord's  Supper 128 

183.  Depraving  the  Book  of  Common  Prayer 128 

184.  Clergymen  refusing  to  use  the  Book  of  Common  Prayer   ...  129 

185.  Disturbing  Public  Worship 130 


CHAPTER  XVIII 
OFFENCES  AGAINST  MORALITY 

186.  Sodomy 131 

187.  Attempt  to  commit  Sodomy      131 

188.  Outrages  on  Decency 131 

189.  Ecclesiastical  Censures  for  Immoralit}" 132 

190.  Public  Indecencies 132 

191.  Obscene  Publications 133 

191a.  Sending  Indecent  Letters 135 

192.  Procuring  the  Marriage  of  Parent  of  a  Bastard 135 

193.  Unlawdiully  Defiling  Women 135 

194.  Householders  permitting  Defilement  of  (iirls  on  their  Premises  136 

195.  Conspiracy  to  Defile 137 

196.  Preventing  the  Burial  of  Dead  Bodies  and  Disinterring  them  .  138 


CONTENTS 


CHAPTER    XIX 
COMMON  XUISANCES— DISORDERLY  HOUSES 

ART.  PAGE 

197.   Common  Nuisance 140 

19S.   Common  Xuisiince  a  Misdemeanour 141 

199.   Punishment  for  Keeping  Disorderly  Houses 141 

•200.   Disorderly  Houses 142 

201.  Common  Bawdy  Houses      142 

202.  Common  Gaming  Houses 143 

203.  Common  Betting  Houses 143 

204.  Evidence  that  a  House  is  a  Common  (iraming  House  ....  144 

205.  Disorderly  Places  of  Entertainment 145 

206.  Disorderly  Inns 146 

207.  Lotteries 146 

20s.   Nuisances  to  Health,  Life,  and  Property 147 

209.  Nuisances  by  Offensive  Trades 148 

210.  Nuisances  to  Highways 148 

211.  Nuisances  to  Bridges 149 

212.  Nuisances  to  Navigable  Rivers 149 

212  V.   N^uisances  in  the  Post  Office 150 


CHAPTER    XX 
VAGRANCY 

21.'{.   Idle  an  1  Disorderl}'  Persons 151 

214.  Rogues  and  Vagabonds 152 

215.  Incorrigible  Rogues 154 

■J It).   Punishment  of  Rogues,  Vagabonds,  &c. 155 


PART   V 

OFFENCES  AGAINST  THE  PERSON,  THE  CONJUGAL 
AND  PARENTAL  RIGHTS,  AND  THE  REPUTA- 
TION   OF    INDIVIDUALS 


CHAITKR   XXI 

CASES  IN  wnicif  INFIJCTION OF liODii.y  ix.iri:y  is  not 

CHIMIN  A  L 

217.   ExceptionM  to  Ro»t  of  I'urt  V. 156 

21  s.    Execution  of  Lawful  SenlenccH 156 


CONTENTS 


ART.  I'A(;K 

219.  Suppression  of  Riots 157 

220.  Prevention  of  the  Commission  of  Crimes  anil  Arrcstof  Criminals  1 58 

221.  Private  Defence 159 

222.  Lawful  Force 161 

223.  Superior  Orders  to  employ  Force 1 02 

224.  Consent  to  Bodily  Injury 1(;4 

225.  Right  to  consent  to  Bodil}'  Injury  for  Surgical  Purposes    .    .  164 

226.  Surgical  Operation  on  Person  incapable  of  Assent 164 

227.  Right  to  consent  to  Bodily  Injury  short  of  Maim 165 

228.  No  Right  to  consent  to  Infliction  of  Death 165 

229.  No  Riglit  to  consent  to  Injury  constituting  a  Breach  of  the 

Peace 166 

230.  Consent  to  be  put  in  Danger 1 66 

231.  Accidental  Infliction  of  Bodily  Injury  by  Lawful  Act — Wiiat 

Acts  are  Lawful 167 


CHAPTER   XXII 

OF   CULPABLE  NEGLIGENCE  AND    OF  DUTIES   TENDING 
TO  THE  PRESERVATION  OF  LIFE 

232.  Death   or  Bodily  Injury  caused  l)y  Omission   to  Discharge  a 

Legal  Duty 169 

233.  Causing  Death  by  Omissions  other  than  those  mentioned  in 

Article  232 171 

234.  Duty  to  provide  Necessaries  of  Life 171 

235.  Delegation  of  Duty  defined  in  Article  234 172 

236.  When  Direct  Performance  of  Duty  Impossible 173 

237.  Duty  of  Care  in  doing  Dangerous  Acts 173 

238.  Duty  of  Persons  doing  Acts  requiring  Special  Skill  or  Know- 

ledge             174 


CHAPTER   XXIII 
HOMICIDE 

239.  Homicide  defined— When  a  Child  becomes  a  Human  Being  .         175 

240.  Killing  defined 175 

241.  When  an  Act  is  the  Remote  Cause  of  Death  or  one  of  Several 

Causes 1 '  ^ 

242.  When  causing  Death  does  not  amount  to  Homicide     ....         180 

243.  When  Homicide  is  Unlawful 181 


CONTENTS 


CHAPTER   XXIV 

MURDEB—MAJSrSLAdGHTEB— ATTEMPTS  TO  COMMIT 
MURDER— CONCEALMENT  OF  BIRTH 

-^RT.  PAGE 

244.  Manslaughter  and  Murder  defined 182 

245.  Effect  and  Definition  of  Piovocation 185 

246.  When  Provocation  iloes  not  extenuate  Homicide 188 

247.  Provocation  to  Third  Person 190 

248.  Suicide — Abetting  Suicide 190 

249.  Manslaughter  of  Oneself 1 90 

250.  Accessories  before  the  Fact  in  Manslaughter 190 

251.  Presumption  that  Killing  is  Murder      191 

252.  Punishment  of  Murder 191 

253.  Punishment  of  Manslaughter 192 

254.  Attempts  to  commit  Murder 192 

255.  Threats  and  Conspiracies  to  Murder 193 

256.  Concealing  the  Birth  of  Children 194 


CHAPTER    XXV 

THE  MALICIOUS  INFLICTION  OF  BODILY  INJURIES 
AMOUNTING  TO  FELONY 

257.  Woundings  and  Acts  Endangering  Life  punishable  with  Penal 

•Servitude  for  Life 105 

258.  Blowing  up  Buildings  and  Ships  with  Intent  to  Injure^ — Four- 

teen Years  Penal  Servitude 198 

259.  Administering  Poison  so  as  to  Endanger  Life  or  Cause  Harm — 

Ten  Years  Penal  Servitude 198 


(JHAPTER   XXVI 

77//;  INFLICTION  OF  BODI LY  INJURIES  NOT  AMOUNTING 
TO  FELONY 

260.   Malicious  Wounding  and  Similar  Acts  punisliable  with  Five 

Years  Penal  Servitude      199 

2(il.   Negligent  Acts  punishable  with  Two  Years  Iinjiiisoimicnt     .         200 


CIl.M'IKIi    .\\\ll 

ASSAULTS  A(.(!ltA\'ATEI)  AND  COMMON   rUMSIIAIil.h: 
ON  INDlCTMESr 

262.    Ahhuull  and  Buttery  aM<l  AhHuult  <le)incd       2(1*2 

H'tW.    I'uniHhnient  of  AhkuuIIs  with  Inti-nt  l<>  Conmiil  Siidoniv     .    .         2(i| 


xl  CONTENTS 


ART.  PAIIK 

264.  Assaults  on  Persons  Protecting  Wreck 204 

265.  Assaults  causing  Actual  Bodily  Harm 204 

266.  Resisting  Lawful  Arrest 204 

267.  Assaults  punishable  with  Two  Years  Ini])risonnicnt    ....  205 

268.  Punishment  of  Common  Assault  on  Indictment 206 


CHAPTER    XXVIII 
RAPE,  ETC. 

269.  Definition  of  Carnal  Knowledge 207 

270.  Definition  of  Rape 207 

271.  Other  Provisions  as  to  Rape 208 

272.  Punishment   of  Rape  and  Carnally  Knowing  Children  under 

Thirteen 209 

273.  Carnally  Knowing  Girls  between  Thirteen  and  Sixteen  .    .    .         209 


CHAPTER   XXIX 

GRIMES  AFFECTING  CONJUGAL  AND  PARENTAL  EIGHTS- 
BIG  A  MY— A  BD  UCTION 

274.  Definition  and  Punishment  of  Bigamy 211 

275.  Principals  in  Second  Degree  in  Bigamy 213 

276.  Irregular  Marriages  under  the  Marriage  Act  of  1823      ...  213 

277.  Irregular  Marriages  under  the  Marriage  Act  of  1837       ...  '-14 

278.  Abduction  with  Intent  to  Marry 215 

279.  Abduction  of  Girls  under  Sixteen 216 

280.  Abduction  of  Girls  under  Eighteen 218 

281.  Detaining  Women  in  Brothels 218 

282.  Stealing  Cliildren  under  Fourteen      219 


CHAPTER   XXX 
OFFENCES  AGAINST  CHILDREN  BY  PARENTS  AND  OTHERS 

283.  Neglecting  to  provide  Food,  &c.,  for  Children 220 

284.  Cruelty  to  Children " 220 

285.  Cruelty  to  Children  by  Interested  Person 221 

286.  Abandoning  Children  under  Two -21 


CONTENTS  xli 


CHAPTER  XXXI 
OFFENCES  CONCERNING  PA  UPERS 

ART.  PAOB 

287.  Promoting  Marriages 223 

288.  Desertion  of  Paupers 223 


CHAPTER  XXXII 
OFFENCES  AS  TO  LUNATICS  AND  ASYLUMS 

289.  Oflfences  Committed  in  Respect  of  Lunatics 224 

290.  Otlier  Breaches  of  the  Lunacy  Act 226 


CHAPTER  XXXIII 
LIBELS  ON  PRIVATE  PERSONS 

291.  Definition  of  Libel 227 

292.  Things  Capable  of  Bemg  Libels 228 

293.  Defamatory  Matter 228 

294.  Publication  definetl 229 

295.  When  a  Libel  is  Malicious 231 

296.  Publication  of  the  Truth 231 

297.  Publication  of  Matter  Honestly  Believed  to  be  True    ....  231 

298.  Fair  Criticism 233 

299.  Parliamentary  Proceedings  and  Fair  Comments  thereon        .    .  23.") 

300.  Reports   in   Newspapers  of  Proceedings  of  Trials  and   Public 

Meetings 23") 

301.  Publication  in  a  Court  of  .Justice 237 

.{1)2.    Fair  Reports  of  Proceedings  of  Courts 238 

31  >3.    Punishment  for  Libel -'39 


xlii  CONTENTS 


PART   VI 

OFFENCES    AGAINST    RIGHTS    OF    PROPERTY    AND 
RIGHTS  ARISING  OUT  OF  CONTRACTS 


CHAPTER  XXXIV 
PROPER  T  Y—  POSSESSIOX—A  SPOR  TA  TION—BA IL  MENT 

ART.  PAGE 

304.  Offences  Against  Rights  of  Propertj'  and  Rights  Aiising  out  of 

Contracts 241 

305.  Property  in  Movable  Things 242 

306.  Possession 243 

307.  Special  Owner 245 

308.  Possessor  Special  Owner  as  Against  Stranger 245 

309.  Taking  and  Carrying  Away 246 

310.  Bailment  defined 247 

311.  Offences    Relating    to    Property   Committed    by   and    Against 

Married  Women      248 


CHAPTER  XXXV 
THINGS  CAPABLE  OR  NOT  OF  BEING  STOLEN 

312.  Things  Capable  of  Being  Stolen 249 

313.  Movable  Things — Land — Things  Fixed  to  Land 249 

314.  Title-Deeds  and  Choses  in  Action 249 

315.  Water— Gas— Electricity      • 250 

316.  Tame  Animals  and  Wild  Animals  in  Captivity 251 

317.  Wild  Animals  Living  and  Dead 252 

318.  Dead  Bodies 252 

319.  Things  Abandoned 253 

320.  Things  of  Value 253 


CHAPTER  XXXVI 
THEFT  IN  GENERAL 

321.  Definition  of  Theft 254 

322.  Theft  by  Taking  and  Carrying  Away 256 

323.  Theft  by  a  Servant — Embezzlement 258 


CONTENTS  xliii 


324.  Theft  by  a  False  Pretence '259 

32,5.  Theft  by  Taking  Advantage  of  a  Mistake 261 

326.  Theft  by  Bailees 262 

327.  By  and  from  Whom  Theft  may  be  Committed 362 

325.  Finding  Goods 264 

329.  Conversion  after  a  Taking  Amounting  to  Trespass 266 

330.  Conversion  after  Innocent  Taking 267 

331.  Obtaining  by  False  Pretences  not  Theft 268 

332.  Temporary  Taking  is  not  Theft 268 

333.  Taking  Tame  Animal  Wandermg  not  Theft 269 

334.  Evidence  as  to  Theft 269 


CHAPTER  XXXVII 
EMBEZZLEMEXT  BY  CLERKS  AND  SERVANTS 

335.  Embezzlement  by  Clerks  and  Servants — Who  are  iServants     .  271 

336.  The  Propertj-  Embezzled  must  be  the  Master's 275 

337.  Distinction  between  Embezzlement  and  Other  Kinds  of  Theft  276 

338.  Evidence  as  to  Embezzlement 278 

CHAPTER  XXXVIII 
ROBBERY  AXD  EXTORTION  BY  THREATS 

339.  Robbery 279 

34<i.   Extortion  by  Threats 279 

CHAPTER  XXXIX 
BURGLARY,   HOUSEBREAKING,  ETC. 

341.  Definitions 282 

342.  Robbing  Places  of  Worship — Burglary 283 

343.  Housebreaking  and  Commission  of  Felony 284 

344.  Entering  Dwelling-House  with  Intent 284 

34.").    Breaking  Out  after  Committing  Felony 284 

346.    Being  Found  in  Possession  of  Housebreaking  Instruments  .    .  285 


CHAPTER  XL 

Pl'NISHMENTS  FOR  STEALING  PAIiTICULAR  THINGS  AND 
HECEIVINd  aOODS  UNLAWFULLY  OBTAIN  El) 

347.   PuMJHhment  for  Stealing  Things  ff)r  which  no  SptM-ial   I'unish- 

nient  in  I'lovided 280 

.'US.   Killing  AniinaJH  wilii  Intent  to  Steal  K(|iiivali.-iit  to  Stealing   .  2SU 

'.\\\).   Sl<-uling  and  Concealing  \'alualile  Securities  .  28/ 

:;.')0.    ThcftH  puniBliable  witii  I'l  iial  Scrvituile  for  Lif<-  288 


xliv  CONTENTS 


ART.  I'ai;K 

351.  Tlicfts  pmiisluible  with  Penal  Sorvitiule  for  Fourteen  Ye;vi'.s     .  '2'^\) 

352.  Thefts  i)unislial)le  with  Penal  Servitude  for  Seven  Years      .    .  291 

353.  Thefts  punishable  with  Penal  Servitude  for  Five  Years    .    .    .  292 

354.  Thefts  punishable  with  Imprisonment 294 

355.  Opening  Letters 295 

356.  Unlawfully  Dredging  for  Oysters 295 

357.  Soliciting  to  Commission  of  Offences  under  tlie  Post  Office  Acts  29(5 


CHAPTER  XLl 

OBTAINING    PROPERTY  BY  FALSE  PRETENCES   AND 

OTHER  CRIMINAL  FRAUDS  AND  DEALINCS   WITH 

PROPERTY 

358.  Obtaining  Goods,  &c. ,  by  False  Pretences 297 

359.  Definition  of  "  False  Pretence  " 298 

360.  Of  "Obtaining" 301 

361.  Intent  to  Defraud 303 

362.  Cheating  at  Play 303 

363.  Obtaining  Credit,  &c.,  by  False  Pretences 304 

364.  Concealing  Deeds  and  Incumbrances 304 

365.  Conspiracy  to  Defraud  or  Extort 305 

366.  Pretending  to  exercise  Witchcraft 306 

367.  Cheating 306 

368.  Servants  Feeding  Horses,  &c.,  against  Orders 307 

369.  Fraudulently  Concealing  Ore 308 

370.  Taking  Marks  from  Public  Stores 308 

371.  Concealing  Treasure  Trove 308 


CHAPTER  XLII 

FRAUDS  BY  AGENTS,   TRUSTEES,  AND   OFFICERS  OF 
PUBLIC  COMPANIES— FALSE  ACCOUNTING 

372.  Punishment  of  jNIisdemeanours  in  this  Chapter 310 

373.  "  Misappropriate "  defined 310 

374.  Conversion  under  the  Larceny  Act,  1901 310 

375.  Misappropriation  under  Power  of  Attorney 311 

376.  Misappropriation  by  Factors  or  Agents 311 

377.  Clerks,  &c.,  A.ssisting  in  Procuring  Advances 313 

378.  Fraudulent  Trustees 314 

379.  Frauds  by  Directors  and  Public  Officers 314 

380.  Rule  of  Evidence 316 

381.  Fraudulent  False  Accounting 316 


COXTENTS  xlv 


CHAPTER  XLIII 
RECEIVING 

ART.  PAGE 

382.  Receiving  defined 318 

383.  Receiving  Property  Unlawfully  Obtained 319 


CHAPTER  XLIV 
FORGERY  IN  GENERAL 

384.  Definition  of  Forgery — Intent  to  Defraud 321 

385.  Making  a  False  Document  defined 323 

386.  "Document" 328 

CHAPTER  XLV 
PUNISHMENT  OF  PARTICULAR  FORGERIES 

387.  "Utter,"'  "Resemble,"  "Forge" 329 

388.  Forgeries  punishable  with  Penal  Sei'vitude  for  Life 330 

389.  Forgeries  punishable  with  Fourteen  Years  Penal  Servitude      .  334 

390.  Forgeries  punishable  with  Seven  Years  Penal  Servitude   .    .    .  336 

391.  Forgery  punishable  with  Five  Years  Penal  Servitude    ....  338 

392.  False  Entry  as  to  Copyright .  338 

393.  Defacing  Rate  Books 338 

394.  Forging  Ballot  Papers 339 

395.  Forging  Telegrams 339 

396.  Making  or  Possession  of  Paper,  &c.,  for  Forging  Bank  Notes 

punishable  with  Fourteen  Years  Penal  Servitude   ....  339 

397.  Offences  relating  to  Exchequer  Bills  and  Paper  used  for  them, 

Seven  Years  Penal  Servitude 343 

398.  The  Like  :  Three  Years  Imprisonment 344 

399.  "  Traxle  Mark  "  and  "  Trade  Description  "  defined 344 

400.  Forging  Trade  Marks  and  Misapplying  Trade  Descriptions  .    .  346 

401.  Accessories  Abroad 348 

402.  Offences  Relating  to  Stamps 348 

403.  Forgery  at  Conmioii  Law,  .Misdciiieanour 353 

CII.M'IKK   .\L\I 
PERSONA  TION 

404.  Personation  to  Olilaiii  rropeily 351 

405.  Acknowledging  I'ecognizance,  &c. ,  in  False  Name 35"J 

406.  PerHonation  in  l''raud  of  tlie  Admiralty 352 

40".    PerHonation  at  Ele<,tif>nH 352 


xlvi  CONTEFTS 


CHAPTER  XLVIl 
OFFENCES  RELATIXa   TO  THE  COIN 

ART.  PAOK 

408.  Interpretation  of  Terms 354 

409.  Coining   and   Possession    of    Instruments    for    Coining — Penal 

Servitude  for  Life 355 

410.  Clipping — Penal  Servitude  for  Fourteen  Years 356 

411.  Coining  Copper  or  Foreign  Money — Penal  Servitude  for  Seven 

Years 357 

412.  Coining  Foreign   Copper  Monej^ — Penal   Servitude  for  Seven 

Years 358 

413.  Uttering  and  Possessing  with  Intent  to  Utter 358 

414.  Uttering  Base  Copper  or  Foreign  Coin 359 

415.  Making  or  Selling  Medals  resembling  Coin 360 

416.  Principals  and  Accessories 361 


CHAPTER  XLVIII 
MALICIOUS  INJURIES  TO  PROPERTY 

417.  Burning  Ships  of  War,  &c. — Felony — Death 362 

418.  Offences  committed  by  or  in  Relation  to  Explosive  Substances  363 

419.  Arson,  &c. — Penal  Servitude  for  Life 364 

420.  Arson,  Injuries  to  Ships  or  Cattle,  &c. — Fourteen  Years  Penal 

Servitude 367 

421.  Threats  to  Burn,  &c. — Ten  Years  Penal  Servitude 369 

422.  Malicious  Mischief — Seven  Years  Penal  Servitude 369 

423.  Malicious  Mischief — Five  Years  Penal  Servitude 372 

424.  Making  and  Possessing  Gunpowder  for  Certain  Purposes     .    .  373 

425.  Sundry  Malicious  Injuries  to  Property 373 


CHAPTER  XLIX 

OFFENCES  RELATING  TO  GAME,  WILD  ANIMALS,  AND 

FISH 

426.  "  Night "  and  "  Game  "  defined 376 

427.  Night  Poaching  and  Assaulting  Keeper 376 

428.  Offences  relating  to  Deer,  Hares,  and  Rabbits 377 


CONTENTS  xlvii 


CHAPTER  L 

OFFENCES  COXXECTED    WITH  TRADE  AXD  BREACH  OF 
COXTRACT 

ART.  PAOK 

429.  Absconding  with  Property  in  Contemplation  of  Bankruptcy   .  379 

430.  Punishment  of  Fraiidiilent  Debtors 379 

431.  Undischarged  Bankrupt  Obtaining  Credit 383 

432.  False  Claim  on  Bankrupt's  Estate 383 

433.  Offences  by  Masters  and  Owners  of  Ships 383 

434.  Offences  bj'  the  Masters  of  British  Ships 384 

435.  Neglect  of  Duty  in  Case  of  Collision 385 

436.  Offences  by  Pilots 386 

437.  Sendmg  Unseawoi'thj'  Ships  to  Sea 386 

438.  Forging  False  Declarations,  &c.,  under  the  Merchant  Shipping 

Act 387 

439.  Various  Offences  under  the  Merchant  Shipping  Act,  1894    .    .  389 

440.  Conspiracies  in  Restraint  of  Ti-ade 390 

441.  What  Acts  done  in  Restraint  of  Trade  are  not  Unlawful     .    .  391 

442.  Conspiracies  in  Restraint  of  Trade,  Misdemeanours      ....  391 

443.  Criminal  Breaches  of  Contract   of  Service — Intimidation  and 

Picketing 391 

444.  Thii-d  Offences  against  the  Truck  Acts 394 


Appendix  of  Notes 395 

Alphabetical  Table  of  Indictable  Offences 433 

Index 457 


A    DIGEST 


THE    CRIMINAL    LAW 


PART  I 


PRELIMINARY 


Explanation  of  Terms. 

CHAP.  I. — Punishments. 

CHAP.  II.  —  Classification  of 
Crimes  and  General  Provisions 
as  to  their  Punishment. 

CHAP.  III. — General  E.kceptions. 


CHAP.  IV. — Parties  to  the  Com- 
mission OF  Crimes — Principal 
and  Accessory. 

CHAP.  V. — Degrees  in  the  Com- 
mission OF  Crime — Incitement — 
Conspiracy — Attempts. 


EXPLANATION   OF   TERMS. 


PEXAL   SERVITUDE, 


^  When'EVER  it  is  stated  that  an  offender  is  liable  to  a 
specified  term  of  penal  servitude,  the  meaning  is  that  he  may 
be  sentenced  to  that  or  to  any  shorter  term  of  penal  servitude 
not  being  less  than  three  years,  or  to  impri.sonment  for  any 
term  not  exceeding  two  years  with  or  without  hard  labour. 

-  In  cases  where  the  punishment  appointed  for  an  offence 
Vjy  statute  is  transportation,  penal  servitudi;  has  been  substi- 
tutL'd. 

'  54  &  5o  Vict.  c.  09,  h.  1.  The  effect  of  tliin  and  the  repoiiled  27  & 
'2H  Vict.  c.  47,  H.  2,  «ceiiiH  to  be  tliat  wliere  the  term  of  live  years  was  tiie 
maximum  sentcnee  in  .ActH  previous  to  o  August,  1K!)I,  it  Htiil  rcniaiiis  so. 

-  1«  &  17  Viet.  e.  9!),  20  &  21   Vict.  e.  A. 


A    DIGEST    OF 


IMPRISONMENT. 

If  the  punishment  spGcifi(xl  is  a  term  of  imprisonment 
with  hard  labour,  or  a  fine  of  a  specified  amount,  the  mean- 
ing (unless  any  qualification  is  specified)  is  that  the  offender 
may  be  sentenced  to  that  or  to  any  shorter  term  of  imprison- 
ment, with  or  without  hard  labour,  or  to  pay  any  fine  of  less 
amount. 

WHIPPING. 

The  letter  W  at  the  end  of  a  reference  to  a  statute  means 
that  the  offender  may,  if  a  male  under  sixteen  years  of  age, 
be  sentenced  to  whipping. 


ALTERATIONS    IN    LANGUAGE   OF   STATUTES. 

The  future  and  the  past  future  are  uniformly  altered  to 
the  present  tense.  Where  "  shall  "  is  used  as  an  imperative 
"must"  is  substituted.  Where  the  language  of  a  statute 
appeared  needlessly  verbose  for  common  purposes,  the  lead- 
ing word  or  an  equivalent  is  preserved  in  the  text,  and  the 
Avords  omitted  are  inserted  in  a  foot-note  for  reference  if 
necessary. 

The  language  of  the  statutes  is  in  most  cases  rearranged 
for  the  sake  of  clearness ;  but  the  words  "  redrawn,"  "  con- 
densed," or  others  of  the  same  sort,  indicate  the  cases  in 
which  the  greatest  alterations  have  been  made. 


DRAFT   CODE. 

The  expression  "  Draft  Code "  means  the  Draft  Code 
appended  to  the  Report  of  the  Criminal  Code  Commission 
published  in  1879,  and  marked  C,  2345, 


THE   CRIMINAL   LAW 


CHAPTER   I 

1  OF  PUNISHMENTS 

Article  1. 

punishments. 

The  following  punishments  are  inflicted  by  the  law  of 
England  for  the  crimes  hereinafter  defined  : — Death,  penal 
servitude,  imprisonment,  detention  in  a  reformatory  school, 
subjection  to  police  supervision,  whipping,  fines,  putting 
under  recognisance. 

Article  2. 

punishment  of  death. 

■^The  punishment  of  death  is  inflicted  by  hanging  the 
offender  by  the  neck  till  he  is  dead. 

Article  3. 

punishment  of  penal  servitude. 

^The  punishment  of  penal  servitude  consists  in  keeping 
the  offender  in  confinement  and  compelling  him  to  labour  in 
the  manner  and  under  the  discipline  appointed  by  the  Acts 
rolating  to  penal  servitude. 

'  See  1  HJHt.  (Jr.  Law,  eh.  xiii.  p.  A^u  ;  Sec  Draft  Code,  Pt.  II.,  ss. 
7-18. 

-  Ak  to  lieatnient  of  priHoners  under  sentence  of  deatli  in  prison,  see  28 
&  29  Vict.  c.  I2»»,  Sell.  I,  KL  As  to  the  history  of  tlie  punisiiment  of 
deatli  and  benefit  of  clergy,  see  1  Hist.  Cr.  Law,  457-HO. 

•  Hi  &  17  Vict.  c.  99  ;  2(1  &  21  Viet.  c.  .3  ;  27  &  28  Viet.  c.  47  :  42  A. 
4:i  Vict.  c.  ru),  H.  2  ;  -,4  &  'i^t  Vict.  c.  «59  ;  un.l  see  r>  (Jco.  4,  c.  84.  The 
Muhject  of  the  nature  of  the  punishment  of  penal  servitude  is  discussed  at 
length  in  H.  v.  Mount,  187'),  \j.  H.  H  I'.  (1  283.  See,  too.  1  Hist.  (>. 
I>/iw,  480-48.S.  See  also,  if  it  shouhl  l(C(;onie  law,  the  Penal  Scrviludtr 
A.:l,  1904. 

It    -1 


A    DIGEST   OF 


Article  4. 
punishment  of  imprisonment. 

^  TIk"  punishment  of  ini})ri.sonnient  consists  in  the  detention 
of  the  offender  in  prison,  and  in  his  subjection  to  the  disci- 
pline appointed  for  prisoners  during  the  period  expressed  in 
the  sentence. 

Imprisonment  is  either  with  or  without  hard  labour. 

The  mode  in  which  sentences  of  imprisonment  are  to  be 
carried  out  is  regulated  by  prison  rules,  which  the  Secretary 
of  State  has  power  to  make.  In  making  such  rules  regard 
must  be  had  to  the  sex,  age,  health,  and  conduct  of  the 
prisoners. 

Article  5. 

imprisonment  to  be  separate. 

■'  All  prisoners  sentenced  to  imprisonment  with  or  without 
hard  labour  must  be  prevented  from  holding  any  communi- 
cation with  each  other,  either  by  every  prisoner  being  kept 
in  a  separate  cell  by  day  and  by  night,  except  when  he  is  at 
chapel  or  taking  exercise,  or  by  every  prisoner  being  confined 
by  night  to  his  cell  and  being  subjected  to  such  superintend- 
ence during  the  day  as  will,  consistently  with  the  provisions 
of  the  Prisons  Act,  1865,  prevent  his  communication  with 
any  other  prisoner. 

Article  6. 

hard  labour. 

^  Every  male  prisoner  of  sixteen  years  of  age  and  upwards 
sentenced  to  hard  labour  must,  during  the  whole  of  his 
sentence,  be  kept  at  hard  labour  of  the  first  class  for  such 

1  See  28  &  29  Vict.  c.  126,  &  61  &  62  Vict.  c.  41,  ss.  2,  4.  As  to  the 
history  of  the  punishment  of  imprisonment,  see  1  Hist.  Cr.  Law, 
483-487. 

2  28  &  29  Vict.  c.  126,  s.  17,  Req.  5.  This  has  practically  superseded 
sentences  of  solitary  confinement. 

3  28  &  29  Vict.  c.  126,  iSch.  I.  34  (redrawn). 


THE   CRIMINAL   LAW 


number  of  hours,  not  more  than  ten  or  less  than  six  (exclu- 
sive of  meals),  as  may  be  prescribed  by  the  visiting  justices, 
subject  to  the  following  provisions  : — 

(1.)  In  cases  in  which  the  sentence  is  for  more  than  three 
months  the  visiting  justices  may,  after  the  expiration  of  the 
first  three  months  of  the  sentence,  substitute  hard  labour  of 
the  second  for  hard  labour  of  the  first  class. 

(2.)  If  the  surgeon  certifies  that  any  prisoner  is  unfit  to  be 
kept  at  either  class  of  hard  labour  during  the  whole  or  any 
part  of  the  prescribed  hours,  he  shall  not  be  kept  to  such 
labour  during  such  time. 

(3.)  If  the  sentence  is  for  a  period  not  exceeding  fourteen 
days,  prisoners  may,  in  pursuance  of  rules  made  by  the  Secre- 
tar}'  of  State,  be  kept  in  separate  confinement  at  hard  labour 
of  the  second  class  during  the  Avhole  period  of  their 
sentences. 

^  Every  male  prisoner  under  the  age  of  sixteen  sentenced 
to  hard  labour,  and  every  female  prisoner  sentenced  to  hard 
labour,  must  be  kept  at  hard  labour  of  the  second  class 
during  such  number  of  hours — not  more  than  ten  or  less 
than  six  (exclusive  of  meals) — in  each  day  as  may  be  pre- 
scribed by  the  visiting  justices,  unless  the  surgeon  certifies 
that  he  or  she  is  unfit  for  hard  labour. 

Article  7. 

imprisonment  without  haiu)  labour. 

-  Prisoners  sentenced  to  imprisonment  without  hard  labour 

are  divided  into  three  divisions.     The  Court  which  passes 

sentence  may,  if  it  thinks  fit,  having  regard  to  the  nature  of 

the  offence  and  the  antecedents  of  the  offender,  direct  that 

he  be  treated  as  an  offender  of  the  first  division,  or  as  an 

offender  of  the  second  division.     If  no  direction  is  given  by 

the  Court  the  offender  must  be  treated  as  an  offender  of  the 

third  division. 

2S  &  29  Vict.  c.   1'2«,  Sch.  I.  ^Tu 
-'  ThiH  and  the  followini,' Article   give  the  joint  ellu.!    of   -JS  ct  •_>!)   Vi.  t. 
e.   1  •_'«>,  K.  «)7,  &.  61  &  02  Vict.  e.  41,  a.  0,  muI.h.  (1),  (2). 


A    DIGEST   OF 


AlM'K'I.K    S. 
IMPRISONMENT    AS   AN    OFFENDEl!    OF   THE    FlIiST    DIVISION. 

^  Imprisonment  as  an  offender  of  the  first  division  is 
inflicted  by  coniining  the  offender  within  the  prison.  Such 
an  offender  is  not  to  be  deemed  to  be  a  criminal  prisoner. 

He  is  permitted  to  maintain  liimself,  and  to  procure  or 
receive,  at  proper  hours,  food,  wine,  malt  liquor,  clothing, 
bedding  or  other  necessaries ;  but  subject  to  examination 
and  to  such  rules  as  may  be  approved  by  the  visiting 
justices. 

He  may  be  permitted  to  work  and  follow  his  trade  or 
profession,  provided  such  employment  does  not  interfere 
with  the  regulations  of  the  prison. 


Article  9. 
treatment  of  trisoners  in  particular  cases. 

^  The  Prison  Commissioners  must  see  that  any  prisoner 
under  sentence  inflicted  on  conviction  for  sedition  or  seditious 
libel,  or  any  person  imprisoned  under  any  rule,  order  or 
attachment  for  contempt  of  any  court,  is  treated  as  an 
offender  of  the  first  division  notwithstanding  any  statute, 
provision  or  rule  to  the  contrary. 

•^  Any  prisoner  imprisoned  in  defjiult  of  entering  into  a 
recognisance  or  of  finding  sureties  to  be  of  good  behaviour  or 
keep  the  peace,  must  be  treated  as  an  offender  of  the  second 
division,  unless  he  is  a  convicted  prisoner,  or  the  court  has 
directed  that  he  shall  be  an  offender  of  the  first  division. 

'  28  &  29  Vict.  c.  126,  s.  67  and  Scl\.  I.  16,  81.  The  rules  upon  which 
this  article  is  founded,  apply  in  terms  to  debtors  only ;  but  as  an 
oH'ender  of  the  first  division  is  not  to  be  regai'ded  as  a  "  criminal  prisoner," 
it  would  seem  to  follow  that  he  is  to  be  treated  as  a  debtor. 

2  40  &  41  Vict.  c.  21,  s.  40  as  modified  by  61  &  62  Vict.  c.  41, 
s.  6  (5). 

3  61  &  62  Vict.  c.  41,  s.  6  (4).  It  is  not  clear  how  a  prisoner  who  is  not 
convicted  can  be  bound  over  to  keep  the  peace  or  be  of  good  behaviour. 


THE   CRIMINAL    LAW 


Article  10. 

detention  in  a  reformatory. 

^  The  punishment  of  detention  in  a  reformatory  school  is 
inHicted  by  detaining  the  offender  in  such  a  school,  and 
subjecting  him  to  the  discipline  thereof,  in  the  manner 
provided  by  the  statutes  relating  to  reformatory  schools. 


Article  11. 
subjection  to  police  supervision. 

-  The  punishment  of  subjection  to  police  supervision 
consists  in  the  subjection  of  every  person  so  punished  to 
the  following  obligations  wheu  at  large  : — 

{a.)  He  must  notify  the  place  of  his  residence,  and  every 
change  of  his  residence,  within  the  same  ^^  police  district,  to 
the  ^  chief  officer  of  police  of  the  district  in  which  his  resi- 
dence is  situate.  *  He  must  comply  with  this  requirement 
by  personally  presenting  himself  and  declaring  his  place  of 
residence  to  the  constable,  or  person  who  at  the  time  when 
such  notification  is  made  is  in  charge  of  the  police  station  or 
office  of  which  notice  has  been  given  to  such  holder  or 
jjerson  as  the  place  for  receiving  such  notification,  or  if  no 
such  notice  has  been  given  in  charge  of  the  chief  office  of 
such  chief  officer  of  police. 

{h.)  ■'  Whenever  he  is  about  to  leave  a  police  district  he 
umst  notify  such  his  intention  to  the  chief  officer  of  police 
of  that  district  stating  the  place  to  which  he  is  going,  and 
ai.so  if  required,  and,  so  far  as  is  practicable,  his  address  at 

»  29  &  30  Vict.  c.  1 1 7. 

-'  34  &  3;j  Vict.  o.  112,  s.  8  (language  pliglitly  nlten.'d). 

'  For  (leliiiitions  of  "police  diHtrict,"  and  "chief  oliicer  of  police,"  see 
34  k  35  Vict.  c.  112,  H.  20. 

*  42  &  43  Vict.  c.  5.'),  h.  2.  The  section  contains  Home  other  vciy  sliglit 
additions  to  the  curlier  Act. 

'  54  &  .'>;■»  Vict.  c.  G9,  h.  8,  whicli  in  enacted  in  .Hul)Mtitutiuii  of  a  part  of 
34  &  W:,  Vict.  c.  112,  H.  8. 


.1    DIGEST   OF 


that  place,  and  whenever  he  arrives  in  any  police  district  he 
must  forthwith  notify  his  place  of  residence  to  the  chief 
officer  of  police  of  such  last-mentioned  district.  Notification 
is  made  as  stated  above.  Ho  is  excused  from  making  the 
notifications  required  to  be  made  in  {a)  and  {h)  if  he  can 
prove  that  being  on  a  journey  he  tarried  no  longer  in  the 
place  in  respect  of  which  he  is  charged  with  failing  to  notify 
his  place  of  residence  than  was  reasonably  necessary,  or  that 
otherwise  he  did  his  best  to  act  in  conformity  with  the  law. 

(c.)  ^  Once  in  each  month  he  must — if  a  male — report 
himself  at  such  time,  and  personally,  or  by  letter,  as  may  be 
prescribed  by  the  chief  officer  of  police  of  the  district, 
either  to  such  chief  officer  himself,  or  to  such  person  as  he 
may  direct. 

{d.)  If  he  fails  to  do  any  one  of  these  things  within  the 
proper  time  he  is  liable  to  be  imprisoned,  with  hard  labour, 
for  any  period  not  exceeding  one  year. 


Article    12. 
punishment  of  whipping. 

{a.)  -  When  no  special  provisions  are  made  as  to  the 
punishment  of  whipping,  the  number  of  strokes  and  the 
instrument  to  be  used  are  left  to  the  discretion  of  the 
person  by  whom  the  whipping  is  inflicted. 

{!).)  ^  When  the  punishment  of  whipping  is  awarded  by 
order  of  one  or  more  justices,  in  exercise  of  their  power  of 
summary  conviction,  the  order  awarding  such  punishment 
must  specify  the  number  of  strokes  to  be  inflicted,  and  the 
instrument  to  be  used  in  the  infliction  of  them.  In  the 
case  of  an  offender  whose  age  does  not  exceed  fourteen  years 

1  34  &  35  Vict.  c.  112,  s.  8. 

2  Such  was  the  practice  when  whipping  was  uiflicted  as  a  common  law 
punishment,  and  such  must  still  be  the  practice  where  no  statutory  direc- 
tions are  given  as  to  the  mode  of  inflicting  it.  The  only  limitation  is  con- 
tained in  the  declaration  of  the  Bill  of  Rights  against  '■illegal  and  cruel 
punishments  "  ( 1  W.  &  M.  sess.  2,  c.  2,  preanible). 

■■;  25  Vicl.  c.  18,  ss.   1,2. 


THE   CRIMINAL   LAW 


the  number  of  strokes  inflicted  must  not  exceed  twelve,  and 
the  instrument  used  must  be  a  birch  rod.  No  such  offender 
may  be  whipped  more  than  once  for  the  same  offence. 

(c.)  ^  When  the  punishment  of  whipping  is  awarded  by 
order  of  a  Court  for  an  indictable  offence,  under  the  liarceny 
Act,  1861,  the  Malicious  Injuries  to  Property  Act,  1861,  or 
the  Offences  against  the  Person  Act,  1861,  the  Court  ma}^ 
sentence  the  offender  to  be  once  privately  whipped,  and  the 
number  of  strokes  and  the  instrument  with  which  they  arc 
to  be  inflicted  must  be  specified  by  the  Court  in  the  sentence. 

(rf.)  -  When  the  punishment  of  whipping  is  awarded  under 
the  Act  for  the  further  securit}-  of  Her  Majesty's  subjects 
from  personal  violence  (26  &  27  Vict.  c.  44),  the  Court  may 
direct  that  the  offender— if  a  male — in  addition  to  the  other 
j)unishment  awarded  to  him,  be  once,  twice,  or  thrice 
privately  whipped,  subject  to  the  following  provisions: — 

(i.)  In  the  case  of  an  offender  whose  age  does  not  exceed 
sixteen  years,  the  number  of  strokes  at  each  such  whipping 
must  not  exceed  twenty-five,  and  the  instrument  used  must 
be  a  birch  rod. 

(ii.)  In  the  case  of  any  other  male  offender,  the  nunibcr  of 
strokes  must  not  exceed  fifty  at  each  such  whipping. 

(iii.)  In  each  case  the  Court  in  its  sentence  must  specify 
the  number  of  strokes  to  be  inflicted  and  the  instrument  to 
bo  used. 

(iv.)  Such  whipping  must  in  no  case  take  place  after  the 
expiration  of  six  months  from  the  passing  of  the  sentence. 

(v.)  Every  such  whipping  to  be  inflicted  on  a  ])erson 
sentenced  to  penal  servitude  nuist  be  inflicted  on  him  before 
he  is  removed  to  a  convict  prison,  with  a  \  icw  to  undergoing 
his  sentence  of  penal  servitude. 

'   24  &  •>:>  Vict.  c.  9G,  8.  119  ;  c.  97,  .s.  7.")  ;  c.   100,  s.  70. 
■^  20  &  27  Vict.  c.  44,  h.  1. 


10  A    DIGEST   OF 


Article  13. 

FINE. 

^  The  punishment  of  fining  consists  in  ordering  the 
offender  to  pay  to  His  Majesty  a  sum  of  mone}'  expressed 
in  the  sentence.  When  no  particular  sum  is  limited  as  the 
maximum  amount  of  a  fine,  the  fine  imposed  must  not  be 
excessive. 

Article  14. 

putting  under  recognisances. 

The  punishment  of  jautting  under  recognisances  consists 
in  ordering  the  offender  to  promise  to  pay  to  His  Majesty 
a  sum  of  money  expressed  in  the  recognisance  if  he  breaks 
the  condition  thereof,  and  to  find  other  persons  to  make  a 
similar  promise  on  his  behalf  and  as  his  sureties.  In  cases 
in  which  the  Court  or  magistrate  is  authorised  to  require 
such  securities,  they  may  direct  the  offender  to  be  imprisoned 
till  he  enters  into  the  recognisance  and  finds  the  sureties. 

^  1  W.  &  M.  sess.  2,  c.  2.  See  also  Magna  Charta,  '  Salvo  contenemento 
suo.' 


THE    CRIMINAL   LAW  11 


CHAPTER  II 

^classification  of  crimes  and  genenal  provisions 
as  to  their  punishment 

Article  15. 

treason,  felony,  and  misdemeanour. 

Every  crhne  is  either  treason,  felony,  or  misdemeanour. 
Every  crime  which  amounts  to  treason  or  felony  is  so 
denominated  in  the  definitions  of  crimes  hereinafter  con- 
tained.    All  crimes  not  so  denominated  are  misdemeanours. 


AirricLE  16. 

CONSEQUENCES  OF  A  CONVICTION  OF  TREASON  OR  FELONY. 

The  consequences  of  a  conviction  of  treason  or  felony  are 
as  follows : — 

(a.)  2  Every  person  convicted  of  treason  or  felony  may  be 
condemned  to  the  payment  of  the  whole  or  any  part  of  the 
costs  and  expenses  incurred  in  and  about  his  prosecution  and 
conviction. 

(h.)^  Immediately  upon  the  conviction  of  any  person  for 
felony,  the  Court  before  which  ho  is  convicted  may  award 
any  sum  of  money  wot  exceeding  £100,  by  way  of  satisfac- 
tion or  compensation  for  any  loss  of  propert}^  suffered  by 
any  person  through  or  by  means  of  such  felony,  upon  the 
application  of  such  person.  Such  sum  is  to  be  deemed  to  be 
a  judgment  debt  due  to  the  person  entitled  to  receive  the 
^aiiie  from  the  pei-son  so  convicted. 

'   2  I  list.  ("r.  Law,  di.  xx.  pp.   192- (5. 

-  'X.\  &  '.\A  Vict.  c.  2.3,  H.  3.    The  Hecti(jii  coiituiiiB  various  Hul)8i(liary  pro- 
\  iwicjiiH  aH  to  coMtH,  which  ilo  not  hear  on    tlie   i)uniHluneiit    of   (lie  olience. 
e  1  Hi«t.  Cr.  Law,  4S7   ». 
■!  Xi  k  34  Vict.  c.  2.3,  H.  4. 


12  A    DIGEST   OF 


(c.)i  Every  person  sentenced  to  death,  to  penal  servitude, 
or  to  any  term  of  imprisonment  with  liard  labour,  or 
exceeding  twelve  months : 

(i.)  Becomes  incapable  of  holding  an}'  militar}'  or  na\al 
office,  or  any  civil  office  under  the  Crown,  or  other  public 
employment,  or  any  ecclesiastical  benefice,  or  of  being 
elected,  or  sitting,  or  voting  as  a  member  of  either  House  of 
Parliament,  or  of  exercising  any  right  of  suffrage  or  other 
parliamentary  or  municij^al  franchise  whatever  in  England, 
Wales,  or  Ireland. 

Such  incapacity  continues  until  such  person  has  suffered 
the  punishment  to  which  he  has  been  sentenced,  or  such 
other  punishment  as  by  competent  authority  may  be  substi- 
tuted for  the  same,  or  until  he  receives  a  free  pardon  from 
His  Majesty. 

(ii.)  If  any  such  person  holds,  at  the  time  of  his  convic- 
tion, any  military  or  naval  office,  or  any  civil  office  under 
the  Crown,  or  other  public  employment,  or  any  ecclesiastical 
benefice,  or  an\"  place,  office,  or  emolument  in  any  university, 
college,  or  other  corporation,  or  is  entitled  to  any  pension 
or  superannuation  allowance,  payable  by  the  public  or  out . 
of  any  25ublic  fund;  such  office,  benefice,  emplo}Tnent,  or 
place,  forthwith  becomes  vacant,  and  such  pension  or  super- 
annuation allowance,  or  emolument,  forth^vith  determines 
and  ceases  to  be  payable,  unless  such  person  receives  a  free 
pardon  from  His  Majesty  within  two  months  after  such 
conviction,  or  ^  before  the  filling  up  of  such  office,  benefice, 
employment,  or  place,  if  given  at  a  later  period. 

{(l)^  Every  person  sentenced  to  death,  or  to  penal  ser- 
vitude, or  against  whom  sentence  of  death  is  recorded,  is 
disabled  from  suing  any  person,  from  alienating  or  charging 
any  property,  and  from  making  any  contract. 

(f?.)^  The  custody  and  management  of  the  property  of 
any  such   person  may  be  committed  to  an  administrator, 

1  33  &  34  Vict.  c.  23,  s.  2. 

2  I  suppose  this  means  if  the  pardon  is  given  more  than  two  mouths  after 
the  conviction. 

3  33  &  34  Vict.  c.  23,  s.  8. 
*  See  ss.  9-29  inclusive. 


THE    CRIMINAL    LAW  13 

or  interim  curator,  appointed  in  the  manner  and  in- 
vested ^^dth  the  powers  described  in  the  statute,  33  &  34 
Vict.  c.  23. 

(/.)  ^  Any  person  subject  to  the  provisions  of  clauses  (rf.)  or 
(e.)  ceases  to  be  afflicted  by  them  when  he  dies,  or  is  made 
bankrupt,  or  has  suffered  any  punishment  to  which  sentence 
of  death  has  been  commuted,  or  has  undergone  the  full  term 
of  penal  servitude  to  which  he  was  sentenced,  or  such  other 
punishment  as  may  have  been  substituted  for  it  by  lawful 
authority,  or  receives  His  Majesty's  pardon. 

Article  17. 
recording  sentence  of  death. 

-  When  any  person  is  convicted  of  any  felony,  except 
murder,  punishable  with  death,  the  Court  may,  if  it  thinks 
fit,  instead  of  pronouncing  judgment  of  death  on  such 
offender,  order  the  same  to  be  entered  of  record,  and  a 
record  of  every  judgment  so  entered  has  the  same  effect  as 
if  the  judgment  had  been  duly  pronounced  and  the  offender 
reprieved  by  the  Court. 

Article  18. 

punishment  for  felony  if  no  express  punishment  pro- 
vided— felonies  under  the  consolidation  acts. 

•'*  Every  person  convicted  of  any  felony  for  which  no 
punishment  is  specially  provided  by  the  law  in  force  for  the 
time  being,  is  liable  upon  conviction  thereof  to  be  sentenced 
to  penal  servitude  f(jr  any  period  not  exceeding  seven 
years. 

'  33  &  :U  Vict.  c.  23,  8.  7. 

-  4  Oeo.  4,  c.  48,  ss.  1,2  (very  much  al)ii(lgeil).  By  (i  &  7  Will.  4  c. 
30,  the  Hiiine  power  waH  given  to  the  Court  in  cases  of  munler  (7/.  v.  JIij<i<j, 
1849,  2  Moo.  &  K.  380),  but  tiiis  Act  was  repealed  l>y  24  &  2r)  Vict.  e.  95. 
Ah  to  the  history  of  the  subject  see  1  Hist.  (-'r.   Law,  472. 

•  7  &  8  <ieo.  4,  c.  28,  sh.  8,  9,  iiiodilie.!  I.y  1  Vict.  c.  90,  s.  5  ;  l(i  .V  17 
Vict.  c.  99  ;  20  &  21  Vict.  c.  3. 


14  A    DIGEST   OF 


^  Every  person  convicted  of  any  felony  (except  murder) 
punishable  under  any  of  the  Criminal  Law  Consolidation 
Acts,  1861,  may,  in  addition  to  any  punishment  thereby 
authorised,  be  required  to  enter  into  his  own  recognisances 
and  to  find  sureties,  both  or  either,  for  keeping  the  peace, 
and  in  default  thereof  may  be  imprisoned  for  any  period  not 
exceeding  a  year. 

Article  19. 

previous  convictions. 

(ft.)  2  If  any  person  is  convicted  of  any  felony,  not  })unish- 
able  with  death  on  the  1st  July,  1827,  committed  after  a  pre- 
vious conviction  for  felony,  he  is  liable,  on  such  subsequent 
conviction,  to  be  sentenced  to  penal  servitude  for  life,  or  to 
be  imprisoned  with  or  without  hard  labour,  for  any  term  not 
exceeding  four  years. 

1  24  &  25  Vict.  c.  96,  s.  117  ;  Ibid.  c.  97,  s.  73  ;  Ibid.  c.  98,  s.  51  ;  Ibid, 
c.  99,  s.  38  ;  Ibid.  c.  100,  s.  71. 

-  7  &  8  Geo.  4,  c.  28,  s.  11.  Bj'  this  Acta  person  convicted  of  larceny, 
after  a  previous  conviction,  was  liable  to  transportation  for  life,  &c.  By 
16  &  17  Vict.  c.  99,  s.  12,  it  was  enacted  that  no  person  shall  be  liable  to 
be  transported  by  reason  onlj'  of  a  previous  conviction  for  larceny,  but 
every  such  person  may  be  sentenced  to  not  more  than  ten  or  less  than  four 
years  penal  servitude.  This  enactment  was  repealed  by  24  and  25  Vict. 
c.  95,  after  having  been  to  some  extent  superseded  bj'  20  &  21  Vict.  c.  3, 
s.  2,  which  abolished  transportation.  By  24  &  25  Vict.  c.  96.  s.  7,  it  was 
enacted  that  a  person  convicted  of  simple  larceny  after  a  previous  convic- 
tion for  felony  should  be  liable  to  a  maximum  punishment  of  ten  years 
penal  servitude  (W.).  Probably  this  was  meant  to  be  a  substitute  for 
7  &  8  Geo.  4,  c.  28,  s.  11,  so  far  as  that  section  applies  to  convictions  for 
sunple  larceu)'^,  but  they  are  not  in  terms  inconsistent.  Theoretically, 
therefore,  I  suppose,  a  person  might  on  a  second  conviction  for  larceny  be 
sentenced  to  penal  servitude  for  life,  or  imprisonment  with  hard  labour  for 
four  years,  and  to  be  thrice  publicly  whipped.  The  question  of  the 
legality  of  such  a  sentence  is  not  likely  to  occur  in  practice  ;  see  Article 
347,  Note  2.  By  27  &  28  Vict.  c.  47,  s.  2,  a  person  sentenced  to  penal 
servitude,  after  a  previous  conviction  for  felony,  could  not  be  sentenced 
to  less  than  seven  years.  But  this  was  repealed  bv  42  &  43  Vict.  c.  54, 
s.  1.  Practically,  therefore,  the  net  result  of  all  this  legislation  is  as 
stated  in  the  text.  The  "  simple  "  larceny  of  the  24  &  25  Vict.  c.  96, 
obviously  means  larceny  not  subjected  to  any  special  punishment  by  reason 
of  any  of  the  aggravating  circumstances  provided  for  in  that  Act.  Hale 
uses  the  expression  "  simple"  larcen}'  in  contradistinction  to  larceny  with 
violence,  which  is  robbery  :  1  Hale,  P.  C.  503.  As  to  what  constitutes  a 
previous  conviction  see  R.  v.  Blahy,  1894,  2  Q.  B.  170,  post,  p.  359. 


TEE    CRIMINAL    LAW  15 

Provided  that  a  person  convicted  of  simple  larceny  after  a 
previous  conviction  for  felony,  cannot  be  sentenced  to  a 
longer  term  of  penal  servitude  than  ten  years. 

(&.)  ^  When  any  person  is  convicted  of  any  felony,  or  of 
any  of  the  misdemeanours,  mentioned  in  the  note  hereto,'^  and 
a  previous  conviction  of  any  felony,  or  any  such  misdemeanour 
is  proved  against  him,  the  Court  having  cognisance  of  the 
indictment  may,  in  addition  to  any  other  punishment  which 
it  may  award  to  him,  direct  that  he  is  to  be  subject  to  the 
supervision  of  the  police  for  a  period  of  seven  years,  or  such 
less  period  as  the  Court  may  direct,  commencing  immediately 
after  the  expiration  of  the  sentence  passed  on  him  for  the 
last  of  such  crimes. 

Article  20. 
special  offences  in  the  case  of  persons  twice  convicted. 

^  Every  person  convicted  on  indictment  of  any  felony  or 
any  such  misdemeanour  as  is  mentioned  in  the  note  hereto,^ 
and  having  had  a  previous  conviction  of  any  such  offence 
proved  against  him,  is  liable  to  a  punishment  of  a  year's 
imprisonment  and  hard  labour,  if  at  any  time  within  seven 
years  immediately  after  the  expiration  of  the  sentence  passed 
upon  him  for  the  last  of  such  offences, 

(r/.)  on  his  being  charged  by  a  constable  with  getting  his 
livelihood  by  dishonest  means,  and  being  brought  before  a 
Court  of  summary  jurisdiction,  it  appears  to  such  Court  that 
there  are  reasonable  grounds  for  believing  that  he  is  getting 
his  livelihood  by  dishonest  means;  or  if, 

(6.)  on  being  charged  with  any  offence  punishable  on  in- 

'  .34  &  .So  Vict.  c.  112,  %.  8,  and  s.  20,  which  defines  tiie  word  "crime" 
employed  in  h.  8. 

'^  V^iz.,  1.  Uttering  false  or  counterfeit  coin.  2.  Possessing  counterfci I 
gold  or  silver  coin.  '.\.  Obtaining  goods  or  numey  by  false  pretences.  4. 
Conspiracy  to  defraud.  5.  Ueing  found  l)y  night  armed  witli  intent  to 
l)reak  into  a  dwelling-house.  6.  lieing  foun<l  by  nigiil,  witJKJut  lawful 
excuse,  with  housebreaking  inijilemcnts.  7.  Heing  found  by  night  with 
face  blackened,  &c. ,  with  intent  to  commit  felony.  8.  Being  fouml  bj- 
night  in  any  dwelling-house  or  building  witli  iiilcnt  to  cominit  f<'h>ii\'. 

3  \\\  k  ■/:>  Vict.  c.  1  12,  Hs.  7,  2(», 

'  Sec  Note  2,  xuprn. 


16  A    DIGEST   OF 


dictment  or  summary  conviction,  and  on  being  required  by  the 
Court  of  summary  jurisdiction  to  give  his  name  and  address, 
he  refuses  to  do  so,  or  gives  a  ftilse  name  or  false  address  ;  or  if 

(c.)  he  is  found  in  any  place,  whether  public  or  private, 
under  such  circumstances  as  to  satisfy  the  Court  before 
whom  he  is  brought  that  he  was  about  to  commit  or  to  aid 
in  the  commission  of  any  offence  punishable  on  indictment 
or  summary  conviction,  or  was  waiting  for  an  opportunity  to 
commit  or  aid  in  the  commission  of  any  offence  punishable 
on  indictment  or  summary  conviction ;  or  if 

(d.)  he  is  found  in  or  upon  any  dwelling-house,  or  any 
building,  yard,  or  premises  being  parcel  of  or  attached  to 
such  dwelling-house,  or  in  or  upon  any  shop,  warehouse, 
counting-house,  or  other  place  of  business,  or  in  any  garden, 
orchard,  pleasure-ground,  or  nursery-ground,  or  in  any 
building,  or  erection  in  an}-  garden,  orchard,  pleasure-ground, 
or  nursery-ground,  without  being  able  to  account  to  the 
satisfaction  of  the  Court  before  whom  he  is  brought  for  his 
being  found  on  such  premises. 


Article  21. 

punishment  of  persons  under  sixteen  years  of  age. 

1  Where  a  youthful  offender,  who  in  the  opinion  of  the 
Court  before  which  he  is  charged  is  less  than  sixteen  years 
of  age,  is  convicted,  whether  on  indictment  or  by  a  Court  of 
summary  jurisdiction,  of  an  offence  punishable  with  im- 
prisonment, and  either, 

{a.)  appears  to  the  Court  to  be  not  less  than  twelve  years 

old,  or 

(b.)  has  been  previously  convicted  of  such  an  offence  as 

aforesaid, 

the  Court  may,  in  lieu  of  or  as  well  as  passing  sentence, 

order  that  he  be  sent  to  a  certified  reformatory  school  for  a 

period  of  not  less  than  three  or  more  than  five  years  so  that 

'  5t)  &  57  Vict.  c.  48,  s.  I. 


THE    CRIMINAL   LAW  17 


such  period  will  expire  at  or  before  the  time  at  which  he  will 
attain  the  age  of  nineteen. 

^  The  Court  may  order  that  the  offender  be  taken  to  a 
prison,  or  an}'  other  place  which  it  thinks  fit,  of  which  the 
occupier  is  willing  to  receive  him,  for  any  time  not  exceeding 
seven,  or  if  necessarv  fourteen,  days,  or  until  an  order  is 
sooner  made  for  his  discharge,  or  for  his  being  sent  to  a 
reformatory  school,  or  otherwise  dealt  with  under  the 
Reformatory  Schools  Act,  1893,  or  any  other  Act.  The 
person  to  w^hom  such  an  order  is  addressed  may  and  must 
detain  such  offender  in  such  place,  and  if  such  offender 
escapes  he  may  be  apprehended  without  warrant,  and 
brought  back  to  such  place. 


Article   22. 

probation  of  first  offenders. 

-  In  any  case  in  which  a  person  is  convicted  of  larceny  or 
false  pretences,  or  any  other  offence  punishable  with  not  more 
than  two  years'  imprisonment,  before  any  Court,  and  no 
previous  conviction  is  proved  against  him,  if  it  appears  to  the 
Court  before  whom  he  is  so  convicted  that,  regard  being  had 
to  the  youth,  character  and  antecedents  of  the  offender,  to  the 
trivial  nature  of  the  offence  and  to  any  extenuating  circum- 
stances under  which  the  offence  was  committed,  it  is  expedient 
that  the  offender  be  released  on  probation  of  good  conduct, 
the  Court  may  instead  of  sentencing  him  at  once  to  any 
punishment,  direct  that  he  be  released  on  his  entering  into  a 
recognisance,  with  or  without  sureties,  and  during  such 
period  as  the  Court  may  direct,  to  appear  and  receive  judg- 
ment when  called  upon,  and  in  tho  meantime  to  keep  the 
peace  and  be  of  good  behaviour.     The  Court  may  direct  that 

'   m  k  ",  Vii.t.  c.  48,  B.  2. 

2  Tti)  &  .^l  Vict.  c.  25.  I  clo  not  see  liow  this  Act  conferred  on  tlio 
Court  any  powers  which  it  did  not  already  possess,  excefit  tiiat  on  a 
breach  of  a  condition  of  tlic  rccogniHance  the  ottender  may  be  arresteii  and 
remanded  or  held  to  ))ail. 


18  A    DIGEST   OF 


the  offender  do  pay  the  eosts  of  the  prosecution,  or  a  portion 
thereof,  within  a  given  time  and  by  given  instahncnts. 

The  original  Court  or  any  Court  of  summary  jurisdiction, 
if  satisfied  by  information  on  oath  that  the  offender  has  failed 
to  observe  any  of  the  conditions  of  his  recognisance,  may  issue 
a  warrant  for  his  ap[)rohension  ;  on  which  he  may  be  remanded 
till  judgment. 

The  Court  before  directing  the  release  of  an  offender  under 
this  Act  must  be  satisfied  that  he  or  his  surety  has  a  fixed 
place  of  abode  or  regular  occupation  in  the  place  for  which 
the  Court  acts,  or  in  which  the  offender  is  likely  to  live 
during  the  period  named  for  the  observance  of  the  conditions. 

Article   23. 

punishment  of  misdemeanours. 

1  Every  person  convicted  of  a  misdemeanour  for  which  wo 
special  punishment  is  provided  by  law  is  liable  to  fine  and 
imprisonment  without  hard  labour  (both  or  either),  and  to 
be  put  under  recognisances  to  keep  the  peace  and  be  of  good 
behaviour  at  the  discretion  of  the  Court. 

^Whenever  any  person  convicted  of  misdemeanour  is 
sentenced  to  imprisonment  without  hard  labour,  the  Court  or 
judge  before  whom  such  person  has  been  tried  may  order,  if 
such  Court  or  judge  thinks  fit,  that  such  person  shall  be 
treated  as  an  offender  of  the  second  or  first  division. 

^Any  person  convicted  of  any  indictable  misdemeanour 
punishable  under  any  one  of  the  Criminal  Law  Consolidation 
Acts,  1861,  may,  in  addition  to  or  in  lieu  of  the  punishment 
by  such  Act  provided,  be  fined  and  required  to  enter  into  his 
own  recognisances,  and  to  find  sureties  (both  or  either)  for 
keeping  the  peace  and  being  of  good  behaviour,  but  no 
person  may  be  imprisoned  for  more  than  one  year  for  not 
finding  such  sureties. 

'    1  Russ.  Cr.  92  ;  R.  v.  Dnim,  1848,  12  Q.  B.  1041. 

2  28  &  29  Vict.  c.  126,  s.  67  ;  61  &  62  Vict,  c,  41,  s.  6. 

'^  24  &  25  Vict.  c.  96,  s.  117  ;  Ibid.  c.  97,  s.  73  ;  Ibid.  c.  98,  s.  51  :  Ibid. 
c.  99,  s.  38  ;  Ibid.  c.  100,  s.  71.  The  provisions  of  these  Acts  will  be 
found  in  Parts  V.  and  VI.  of  the  Digest. 


THE    CRIMINAL    LAW  19 


Article   24. 
cumulative  punishments. 

^  Wherever  sentence  is  passed  for  felony  on  a  person 
already  imprisoned  under  sentence  for  another  crime,  the 
Court  may  award  imprisonment  for  the  subsequent  offence 
to  commence  at  the  expiration  of  the  imprisonment  to  which 
such  person  was  previously  sentenced.  When  such  a  person 
is  already  under  sentence  either  of  imprisonment  or  penal 
servitude,  the  Court,  if  empowered  to  pass  sentence  of  penal 
servitude,  may  award  such  sentence  for  the  subsequent 
offence,  to  commence  at  the  expiration  of  the  imprisonment 
or  penal  servitude  to  which  such  person  was  previously 
sentenced,  although  the  aggregate  term  of  imprisonment  or 
penal  servitude  respectively  may  exceed  the  term  for  which 
either  of  those  punishments  could  be  otherwise  awarded. 

2  When  an  offender  is  convicted  of  more  misdemeanours 
than  one,  he  may  be  sentenced  to  a  separate  punishment  for 
each  offence,  and  the  Court  may,  if  it  thinks  fit,  direct  that 
the  one  punishment  shall  not  begin  until  the  other  has  been 
undergune. 

'  7  &  8  Geo.  4,  c.  28,  s.  10.  When  felonies  as  a  rule  were  capital,  there 
coultl  be  no  cumulative  sentences  in  regard  of  them,  whether  they  were 
charged  in  different  in<lictments  or  in  different  counts  of  the  same  indict- 
ment. If  they  were  charged  in  separate  indictments,  the  prisoner  having 
heen  convicted  and  sentenced  on  one,  might  plead  "  autrefois  attaint  "  to 
any  subsequent  charge.  There  was  no  use  in  passing  two  sentences  of 
death  upon  him  (See  Chitty's  Criminal  Law,  463).  If  two  felonies  were 
charged  in  one  indictment,  the  prosecutor  was  put  to  his  election — as 
indeed  he  still  is.  When  death  ceased  to  be  the  punishment  for  felonies  as 
sucii  (7  &  8  Geo.  4,  c.  28,  s.  7)  it  was  necessary  to  make  provision  for  tlie 
punishment  of  persons  alieady  under  sentence.  Hence  the  ])iovision  in 
tiie  te.vt.  Cumulative  punishment  in  cases  of  niisdcmeanoui'  depends  on 
the  common  law  pi-inciples. 

2  Opinion  of  the  judges  in  WilL-es'fi  Cant,  1770,  1!)  .St.  Tr.  11.S2-.S,  and 
see  U.  V.  Castro,  18SI  ;  6  Apj).  Ca.  229,  f)  Q.  H.  I).  490.  In  the  ca.se  of 
Rhenwick  Williams,  1790,  I  Leacii,  ;'529,  cumulative  sentences,  amounting 
in  all  to  hIx  years'  imprisonment,  were  passeil  uj)()n  three  indictnicnts  for 
Hiiniiar  offences. 


<"    li 


20  A    DIGEST   OF 


CHAPTER  III. 

J  GENERA  L   EX  CEP  TIOXS 

AUTICLE    25. 
DEFINITIONS   SUBJECT   TO    EXCEPTIONS. 

Every  definition  hereinafter  contained  of  any  crime  is 
subject  to  the  following  general  exceptions,  except  in  the 
cases  in  which  the  contrary  is  expressed  : — 

Article  26. 
children  under  seven. 

-  No  act  done  by  any  person  under  seven  years  of  age  is  a 
crime. 

Article  27. 
children  between  seven  and  fourteen. 

^  No  act  done  by  any  person  over  seven  and  under  fourteen 
3'ears  of  age  is  a  crime,  unless  it  be  shown  affirmatively  that 
such  person  had  sufficient  capacity  to  know  that  the  act  was 
wrong. 

Article  28. 
insanity. 

^  No  act  is  a  crime  if  the  person  who  does  it  is  at  the  time 
when  it  is  done  prevented  ^either  by  defective  mental  power 
or]  by  any  disease  affi^cting  his  mind 

(a)  from  knowing   the   nature   and   quality  of  his  act ;  or, 

^  See  2  Hist.  Cr.  Law,  chaps,  xviii.,  xix..  pp.  94-186.  See  Draft  Code, 
Pt.  III.  ss.  19-70. 

2  1  Hale,  P.  C.  27-8  ;   I   Russ.  Cr.  109  ;  Draft  Code,  s.  20. 

3  R.  V.  Oii-pji,  1830,  4  C.  &  P.  236  ;  and  see  cases  collected  1  Russ.  Cr. 
109-112  ;  Draft  Code,  s.  20. 

*  The  whole  subject   is  discussed  at  full  length   in  2   Hist.  Cr.  Law, 
chap,  xix.,  pp.  124-186.      Cf.  Draft  Code,  s.  22. 
•'  The  parts  of  the  article  bracketed  are  doubtful. 


THE   CRIMINAL    LAW  21 


(b)  from  knowing  that  the  act  is  ^  wrong  ;  [-'or, 

(c)  from  controlling  his  own  conduct,  unless  the  absence 
of  the  power  of  control  has  been  produced  by  his  own 
default.] 

But  an  act  may  be  a  crime  although  the  mind  of  a  person 
who  does  it  is  affected  by  disease,  if  such  disease  does  not  in 
fact  produce  upon  his  mind  one  or  other  of  the  effects  above 
mentioned  in  reference  to  that  act. 


Illustratio7is. 

(1.)  A  kills  B  under  an  insane  delusion  that  he  is  breaking  a 
jar.      A's  act  is  not  a  crime. 

(2.)  A  kills  B  knowing  that  he  is  killing  B,  and  knowing 
that  it  is  wrong  to  kill  B ;  but  his  mind  is  so  imbecile  that  he 
is  unable  to  form  such  an  estimate  of  the  nature  and  consequences 
of  his  act  as  a  person  of  ordinary  intelligence  would  form.  A's 
act  is  not  a  crime  if  the  words  within  the  first  set  of  brackets 
are  law.      If  they  are  not  it  is. 

(3.)  A  kills  B  knowing  that  he  is  killing  B,  and  knowing  that 
it  is  illegal  to  kill  B  ;  but  under  an  insane  delusion  that  the  sal- 
vation of  the  human  race  will  be  obtained  by  his  execution  for 
the  murder  of  B,  and  that  God  has  connnanded  him  (A)  to  pro- 
duce that  result  by  those  means.  A's  act  is  a  crime  if  the  word 
"  wrong  "  has  the  second  of  the  two  meanings  ascribed  to  it  in 
the  note.^  It  is  not  a  crime  if  the  word  "  wrong  "  has  the  first 
of  those  two  meanings. 

(4.)  A  suddenly  stabs  B  under  the  influence  of  an  impulse 
caused  by  disease,  and  of  such  a  nature  that  nothing  short  of 
the  mechanical  restraint  of  A's  hand  would  have  prevented  the 
stab.  A's  act  is  a  crime  if  ('■.)  is  not  law.  It  is  not  a  crime  if 
('•.)  is  law. 

(5.)  A  suddenly  stabs  B  under  the  influence  of  an  impulse 
caused  by  disease,  and  of  such  a  nature  tliata  strong  motive,  as, 
for  instance,  the  fear  of  his  own    iumiediate   death,   would    ])ave 


•  'J'lie  word  "  wrong  "  is  variously  interpreted  as  meaning: — 1.  Morally 
wrong.  2.  Illegal.  'I'lie  practical  effect  of  these  differences  is  shown  in 
illustrations  (4),  (5),  and  (0). 

•^  The  parts  of  the  article  bracketed  are  doubtful. 

^  In  extreme  strictness  this  ought  to  be,  "  If  the  woid  '  wrong  Ims 
the  first  of  these  two  meanings  the  criminality  of  the  act  would  depend 
ui>on  t)ie  question  whether  the  jury  thouglit  that  (iod's  command  under 
the  circunristances  altered  the  moral  oharactei-  (if  tin-  act." 


22  A    DIGEST   OF 


prevented  the  act.  A's  act  is  a  oiinie  wliether  {c.)  is  or  is  not 
law, 

(6.)  A  permits  his  mind  to  dwell  upon  and  desire  B's  death  ; 
under  the  influence  of  mental  disease  this  desire  becomes  un- 
controllable, and  A  kills  B.  A's  act  is  a  crime  whether  (r.)  is  or 
is  not  law. 

(7.)  A,  a  patient  in  a  lunatic  asylum,  who  is  under  a  delusion 
that  his  finger  is  made  of  glass,  poisons  one  of  his  attendants  out 
of  revenge  for  his  treatment,  and  it  is  proved  that  the  delusion 
had  no  connection  whatever  with  the  act.      A's  act  is  a  crime. 


Article  29. 

presumption  of  sanity. 

1  Every  person  is  presumed  to  be  sane,  and  to  be  responsible 
for  his  acts.  The  burden  of  proving  that  he  is  irresponsible 
is  upon  the  accused  person  ;  but  the  jury  may  have  regard  to 
his  appearance  and  behaviour  in  court. 

Article  30. 
drunkenness. 

^Voluntary  drunkennness  is  not  regarded  as  a  disease 
affecting  the  mind  within  the  meaning  of  Article  28 ;  but 
involuntary  drunkenness,  and  diseases  caused  by  \oluntary 
drunkenness,  fall,  so  far  as  they  affect  the  mind,  within  that 
Article. 

If  the  existence  of  a  specific  intention  is  essential  to  the 
commission  of  a  crime,  the  fact  that  the  offender  was  drunk 
when  he  did  the  act  which,  if  coupled  with  that  intention, 
would  constitute  such  crime,  should  be  taken  into  account  by 
the  jury  in  deciding  whether  he  had  that  intention. 

Illustrations. 

(1.)  ^A,  in  a  fit  of  voluntary  drunkenness,  shoots  B  dead,  not 
knowinsr  what  he  does.      A's  act  is  a  crime. 


1  R.  V.  Oxford,  1840,  9  C.  &  P.  525  ;  R.  v.  Stakes,  1848,  3  C.  &  K.  185  ; 
Draft  Code,  s.  22. 

2  1  Hale,  P.  C.  32-3.      Illu.stratioiis  (1),  (2),  and  (3)  are  founded  on  this 
passage. 


THE    CRIMINAL    LAW  23 

(2.)  ^  A,  under  the  influence  of  a  drug  fraudulently  adminis- 
tered to  him,  shoots  B  dead  not  knowing  what  he  does.  A's 
act  is  not  a  crime. 

(3.)  ^  A,  in  a  fit  of  delirium  tremens  caused  by  voluntary 
drunkenness,  kills  B,  mistaking  him  for  a  wild  animal,  attacking 
A.      A's  act  is  not  a  crime. 

(4r.)  ^  A  is  indicted  for  inflicting  on  B  an  injury  dangerous  to 
life  with  intent  to  murder  B.  The  fact  that  A  was  drunk  when 
he  inflicted  the  injury  ought  to  be  taken  into  account  by  the 
jury  in  deciding  whether  A  intended  to  murder  B  or  not. 

Article  31. 
married  women. 

-  If  a  married  woman  commits  a  theft  or  receives  stolen 
goods  knowing  them  to  be  stolen  in  the  presence  of  lier 
husband  she  is  presumed  to  have  acted  under  his  coercion, 
and  such  coercion  excuses  her  act ;  but  this  presumption  may 
be  rebutted  if  the  circumstances  of  the  case  show  that  in 
point  of  fact  she  was  not  coerced. 

It  is  uncertain  how  far  this  principle  applies  to  felonies  in 
general. 

It  does  not  apply  to  high  treason  or  murder. 

It  probably  does  not  apply  to  robbery. 

It  applies  to  uttering  counterfeit  coin. 

It  seems  to  apply  to  misdemeanours  generally. 

>  1  Hale,  p.  C.  32-3.  Illustrations  (1),  (2),  and  (3)  are  founded  on  tliis 
passage. 

2  R.  V.  CV!/.s€,  1838,  8  C.  &  P.  at  p.  546. 

«  1  Hale,  P.  C.  45  ;  I  Hawk.  P.  C.  4  ;  R.  v.  Hiujhes,  1813,  1  Russ.  Cr. 
146  ;  2  Lew.  229  ;  R.  v.  Atkimon,  1814,  1  Russ.  Cr.  141  ;  ir",  v.  Smith, 
1858,  D.  &  B.  553;  R.  v.  Archer,  1826,  1  Moo.  143;  R.  v. 
Brooks,  1853,  I).  &  P.  184  ;  R.  v.  Wardroper,  1860,  Bell  C.  C.  249.  As 
to  felonies  in  general,  see  1  Russ.  Cr.  140.  As  to  high  treason,  murder, 
and  rohbery,  see  1  Hale,  P.  C.  45  ;  Dalton,  c.  157  ;  1  Hawk.  P.  C.  4  ; 
R.  V.  Buncombe,  1845,  1  Cox,  C.  C.  183  ;  but  as  to  roljbery,  see  Mr. 
Carrington's  argument  in  R.  v.  Cruse,  1838,  8  C.  &  P.  at  p.  555. 
Mr.  Russell  Gurney,  Reconler  of  London,  held  that  the  doctrine  applied 
to  "^robbery,  R.  v.  Torjity,  1871,  12  Cox,  C.  C.  45  ;  and  I  followed 
this  decision  in  R.  v.  Dykes,  1885,  15  Cox,  C.  C.  771  ;  cf.  Draft  Code, 
8.  23.  Ab  to  misdemeanours  in  general,  see  R.  v.  Prict,  1837,  8  C.  &  P.  19, 
and  note  p.  20  ;  and  1  Rush.  Cr.  p.  145,  note  (b),  ub.  sup.  ;  see  too  R.  v. 
Torpty,  ub.  sup.  Ah  to  uttering,  see  R.  v.  Price,  ub.  sup.  As  to 
false  swearing,  R.  v.  Dirks,  1781,  1  Rush.  Cr.  141.  As  to  the  general 
doctrine,  see  Note  I.  The  principle  is  not  afFected  by  the  Married 
Women's  I'roperty  Act,  45  i  4(j  \'i<.t.  c  ','>. 


24  A    DIGEST   OF 


Article  ;}2. 

c  o  m  !•  li  l  s  1  o  x. 

^An  act  which  if  done  willinglj^  would  make  a  person  a 
principal  in  the  second  degree  and  an  aider  and  abettor  in  a 
crime,  may  be  innocent  if  the  crime  is  committed  by  a  num- 
ber of  offenders,  and  if  the  act  is  done  only  because  during 
the  whole  of  the  time  in  which  it  is  being  done,  the  person 
who  does  it  is  compelled  to  do  it  by  threats  on  the  part  of 
the^  offenders  instantly  to  kill  him  or  to  do  him  grievous  bodily 
harm  if  he  refuses;  but  threats  of  future  injury,  or  the  com- 
mand of  any  one  not  the  husband  of  the  offender,  do  not 
excuse  any  offence. 

Illustratwiis. 

(1.)  "'A,  \i,  and  C,  engaged  iu  a  rebellion,  force  JJ  to  join  the 
rebel  army  and  to  do  duty  as  a  soldier  b}'  threats  of  death 
continuing  during  the  whole  of  his  services.  D's  act  is  not  a 
crime. 

(2)  *  A  mob  employed  in  breaking  threshing  machines  force 
several  persons  to  go  with  them,  and  force  each  person  to  give 
each  threshing  machine  a  blow  with  a  sledge-hammer  ;  A,  one  of 
the  persons  so  forced,  runs  away  as  soon  as  he  can.  A's  act  is 
not  a  crime. 

Article  38. 

necessity. 

An  act  which  would  otherwise  be  a  crime  may  in  some 
cases  be  excused  if  the  person  accused  can  show  that  it  was 
done  only  in  order  to  avoid  consequences  Avhich  could  not 

1  Draft  Code,  s.  2.3. 

-  1  Hale,  P.  C.  43-4,  49,  and  see  Illustrations. 

^  R.  V.  M'Groiuther,  1746,  18  St.  Tr.  391. 

*  B.  V.  Crutchley,  1831,  5  C.  &  P.  133.  The  report  saj's  nothing  as  to 
the  nature  of  the  force.  Probably  it  was  by  threats  of  personal  violence. 
It  is  singular  that  the  law  upon  this  subject  shoidd  be  .so  very  meagre. 
The  subject  is  treated  at  some  length  in  1  Hale,  cc.  vii. ,  viii.,  and  ix. 
pp.  43-57,  but  in  a  very  unsatisfactory  way.  It  would  seem  that  m  all 
common  cases  the  fact  that  a  crime  is  done  unwillingly  and  in  order  to 
avoid  injury,  ought  to  affect  rather  the  punishment  than  the  guilt. 


THE    CRIMINAL    LAW  25 

otherwise  be  avoided,  and  which,  if  they  had  followed,  would 
have  inflicted  upon  him  or  upon  others  whom  he  was  bound 
to  protect  inevitable  and  irreparable  evil,  that  no  more  was 
done  than  was  reasonably  necessary  f<»r  that  purpose,  and 
that  the  evil  inflicted  by  it  was  not  disproportionate  to  the 
evil  avoided. 

^The  extent  of  this  principle  is  unascertained.  It  does 
not  extend  to  the  case  of  shipwrecked  sailors  who  kill  a  boy, 
one  of  their  number,  in  order  to  eat  his  bodj^ 

1  R.  V.  Dmlhij  <t-  Stephens,  1884,  14  Q.  B.  D.  273.  In  this  case  the 
Court  commented  on  the  passage  m  the  text,  and  Lord  Coleridge  in 
delivering  judgment  said  (p.  286),  "  We  have  the  best  authority  for  saj-- 
ing  that "  my  "  language  was  not  meant  to  cover  the  case  then  under  con- 
sideration." I  autliorised  this  statement,  and  on  consideration  I  feel  that 
my  language  was  not  vague  enough — vague  as  it  was — to  represent  fully 
the  vagueness  of  the  law.  1  have  slightly  altered  it,  so  as  to  make  it 
more  vague.  I  should  have  agreed  with  the  rest  of  tlie  Court  had  I  been 
a  member  of  it  in  R.  v.  Dudley,  though  not  in  all  the  reasoning  of  the 
judgment.  I  should  have  based  my  judgment  on  the  fact  that  the  special 
verdict  found  only  that  if  the  boy  had  not  been  killed  and  eaten  tiie  survivors 
"  would  prohahlji  not  liave  survived"  ;  and  on  the  prmciple  that  in  this 
particular  class  of  cases  an  error  on  the  side  of  severity  is  an  error  on  the 
safe  side,  (xreat  danger  would  be  involved  in  admitting  a  principle  which 
might  be  easily  abused.  I  could  not  go  so  far  as  to  say,  as  the  judgment 
delivered  by  Lord  Coleridge  says,  tiiat  any  case  can  impose  on  a  man  "a 
iluty  "  (if  tlie  word  means  a  legal  duty)  "  not  to  live  but  to  die  "  Nor  do 
I  agree  with  Avliat  is  said  on  p.  287,  which  appears  to  me  to  base  a  legal 
conclusion  upon  a  questionable  moral  and  theological  foundation,  and  to  be 
rhetorically  expressed.  "  It  would  be  a  very  easy  and  cheap  displa3-  of 
conuiionplace  learning"  (it  is  said  with  obvious  truth)  to  "quote  from" 
four  specified  "  (Jieek  and  Latin  authors  passage  after  j)assage  in  whicli 
the  duty  of  dying  for  others  has  Ijecn  laid  tlown  in  glowing  and  empluitic 
language  as  resulting  from  the  principles  of  heathen  ethics.  It  is  enougli 
in  aCliristian  country  to  remind  ourselves  of  the  (Jreat  E.\'am]>le  whom  we 
profess  to  follow."  \\'hatever  estimate  may  he  formed  of  self-sacrifice,  it 
seems  to  me  to  be  a  duty  of  which  the  law  can  take  no  notice,  if  indeed  it 
is  a  duty  at  all,  which  is  not  a  legal  (juestion.  I  can  discover  no  principle 
in  tlie  ju<lgment  in  R.  v.  Dudley.  It  depends  cntiiely  on  its  peculiar  facts. 
The  1k)j-  was  deliljerately  put  to  death  with  a  knife  in  order  that  his  botly 
might  be  used  for  food.  This  is  quite  diH'erent  from  any  of  the  following 
<;a«e8 — (1 )  The  two  men  on  a  plank.  Here  the  successful  man  does  no 
direct  Ixxlily  harm  to  the  other.  He  leaves  him  the  chance  of  getting 
another  plank.  (2)  .Several  men  are  roped  together  on  the  Al])s.  They 
slip,  and  the  weight  of  the  whole  party  is  thrown  on  one,  who  cuts  the 
roj>e  in  order  to  save  himself.  Here  the  (piestion  is  not  whether  some 
Hhall  rlie,  i)Ut  whether  one  shall  live.  (.'{)  The  choice  of  evils.  The 
'-uptain  of  a  sliij)  runs  <lown  a  boat,  as  the  only  me<ins  of  avoi<ling  ship- 
wrei.k.  A  surgeon  kills  a  child  in  tlie  act  of  birth,  as  the  oidy  way  to 
Have  the  mother.  A  l>oat  lieing  too  full  of  passengei-s  to  float,  Honii-  are 
llm.wii   r.\  1-1  I.i.ikI.      .Such  cases  are  Itest  ilecided  as  they  arise.      Sec  on 


26  A    DIGEST   OF 


Illustrations. 

(1.)  ^  A,  the  Govenioi'  of  Madras,  acts  towards  his  council  in 
an  arbitrary  and  illegal  manner.  The  council  depose  and  put 
him  under  arrest,  and  assume  the  powers  of  government  them- 
selves. This  is  not  an  offence  if  the  acts  done  by  the  council 
were  the  only  means  by  which  irreparable  mischief  to  the 
establishment  at  ^Madras  could  be  avoided. 

(2.)  -  A  and  B,  swimming  in  the  sea  after  a  shipwreck,  get 
hold  of  a  plank  not  large  enough  to  support  both  ;  A  pushes  oflf 
B,  who  is  drowned.      This  is  not  a  crime. 


Article  84. 
ignorance  of  law. 

^The  fact  that  an  offender  is  ignorant  of  the  law  is  in  no 
case  an  excuse  for  his  offence,  but  it  may  be  relevant  to  the 
question  whether  an  act  which  would  be  a  crime  if  accom- 
panied by  a  certain  intention  or  other  state  of  mind,  and  not 
otherwise,  was  in  fact  accompanied  by  that  intention  or  state 
of  mind  or  not. 

■*  In  interpreting  a  statute  which  makes  unlawful  a  con- 
tinuous act  which  till  the  statute  passed  was  not  unlawful, 
it  is  to  be  presumed  that  the  legislature  intended  to  allow  a 
reasonable  time  for  the  discontinuance  of  the  act  so  made 
unlawful,  and  the  ignorance  of  the  agent  that  the  statute 


the  whole  subject  my  Historj-  of  Crhniiial  Law,  ii.  108-15.  In  the 
United  States  [Commonwealth  v.  Holms,  1  Wall.  Jr.  1,  quoted  at  length 
in  Wharton  on  Criminal  Law,  s.  511  (n. ))  shipwrecked  sailors  and 
passengers  escaping  in  a  boat  which  could  not  hold  all,  the  sailors  threw 
some  of  the  passengers  overboard.  The  Court  held  that  the  passengers 
ought  to  have  been  preferred  to  the  sailors,  unless  the  presence  of  all  the 
sailors  was  required  for  the  common  safet}',  but  "  under  any  circumstances 
it  was  held  the  proper  method  of  determining  who  was  to  be  the  first 
victim  out  of  the  particular  class  was  by  ballot."  I  doubt  whether  an 
English  Court  would  take  this  view.  It  would  be  odd  to  say  that  the  two 
men  on  the  raft  were  bound  to  toss  up  as  to  which  should  go. 

1  H.  V.  Slratton  d;  Others,  1780,  21  St.  Tr.  1045  ;  see  Lord  Mansfield's 
judgment,  pp.   1222-6. 

2  Bacon's  Maxims,   No.   5. 

3  Draft  Code,   24. 

*  See  Illustration  (3). 


THE   CRIMINAL   LAW  27 

had  been  passed,  is  a  fact  relevant  to  the  question  whether 
his  discontinuance  of  it  was  within  such  reasonable  time  or 
not. 

Illustrations. 

(1.)  1  A,  a  foreigner  unacquainted  with  the  law  of  England, 
kills  B  in  a  duel  in  England.  A's  act  is  murder  although  he 
may  have  supposed  it  to  be  lawful. 

(2.)  -  A,  a  poacher,  sets  wires  for  game,  which  are  taken  by  B, 
a  gamekeeper,  under  the  authority  of  an  Act  of  Parliament  (5 
Anne,  c.  14,  s.  4),  of  the  existence  of  which  A  is  ignorant.  A 
forcibly  takes  the  wires  from  B,  and  is  tried  for  robbery.  His 
ignorance  of  the  Act  is  relevant  to  the  question  whether  he  took 
the  wires  under  a  claim  of  right. 

(3.)  ^  A  is  in  command  of  a  ship  on  a  voyage,  which  during 
its  continuance  is  rendered  unlawful  by  the  passing  of  the  kid- 
napping Act,  1872  (35  <fe  36  Vict.  c.  19),  but  A  was  not  aware 
that  the  Act  had  been  passed  till  a  considerable  time  afterwards, 
and  he  continued  his  voyage  in  ignorance  of  the  Act.  The  fact 
of  A's  ignorance  is  relevant  to  the  question  whether  the  par- 
ticular voyage  in  which  A  was  engaged  was  one  to  which  tlie 
Act  was  intended  by  the  legislature  to  apply. 


Article  35. 
ignorance  of  fact. 

An  alleged  offender  is  in  general  deemed  to  have  acted 
under  that  state  of  facts  which  he  in  good  faith  and  on 
reasonable  grounds  believed  to  exist  when  he  did  the  act 
alleged  to  be  an  offence. 

When  an  offence  is  so  defined  by  statute  that  the  act 
of  the  offender  is  not  a  crime  unless  some  independent  fact 
co-exists  with    it,  the   Court  must   decide   whether    it   was 

'   Ex  jMftt  liarroiifJ,  IH.l'i,  1   H.  &  il.   1. 

2  R.  V.  Halt,  1828,  3  C.  &  F.  409.  In  li.  v.  Heed,  1842,  Car.  &  Mar. 
306,  Coleridge,  J.,  said  :  "  Ignorance  of  tlie  law  cannot  excu.se any  person, 
but  at  the  name  time  when  the  (juestion  is  with  what  intent  a  ])er«on 
taken,  we  wmnot  help  looking  into  their  state  of  mind,  as  if  a  person 
taken  what  he  lielieveH  to  be  his  own  it  is  impossible  to  say  lie  is  guilty  of 
felony." 

hnruH  V.  A'oi/'e//,   1 880,  7,  ().   I'..   I).    i\\. 


28  A    DIGEST   OF 


the  intention  of  the  legislature  that  the  person  doing  the 
forbidden  act  should  do  it  at  his  peril,  or  that  his  ignorance 
as  to  the  existence  of  the  independent  fact,  or  his  mistaken 
belief  in  jjood  faith  and  on  reasonable  grounds  that  it  did  not 
exist,  should  excuse  him.^ 

Voluntary  or  negligent  ignorance  of  any  such  fact  is  no 
excuse  for  any  such  offence. 

In  cases  of  the  intiiction  of  bodily  harm  or  restraint 
for  the  purpose  of  arresting  or  retaking  a  person  honestly 
and  reasonably  but  erroneously  supposed  to  be  liable  to 
be  arrested  or  retaken,  the  person  inflicting  such  harm 
or  restraint  is  not  justified  by  such  belief  unless  the 
state  of  facts  in  the  existence  of  which  he  erroneously 
believed  would,  if  it  had  really  existed,  have  made  it  his 
legal  duty  to  act  as  he  did,  or  would  have  been  such  as 
to  make  his  conduct  an  act  of  defence  of  his  person  or 
habitation. 

Illustratio7is. 

(1.)  -  A  being  deserted  by  her  husband  is  informed,  and  in  good 
faith  and  on  reasonable  grounds  believes,  that  he  is  dead.  She 
marries  again  within  seven  yeai's  after  the  desertion.  She  is 
not  guilty  of  bigamy. 

(2.)  ^  A,  under  an  insane  delusion,  kills  B.  If  the  delusion  is 
such  that  its  truth  would  justify  him  in  doing  so,  his  act  is  not 
a  crime.  The  delusion  would  also  be  evidence  that  A  did  not 
know  he  was  doing  wrong  even  if  its  truth  would  not  justify  the 
act. 

(3.)  ■*  A,  making  a  thrust  with  a  sword  at  a  place  where,  upon 
reasonable  grounds,  he  supposes  a  burglar  to  be,  kills  a  person 
who  is  not  a  burglar.  A  is  in  the  same  situation  as  if  he  had 
killed  a  burglar. 

(4)  "  A  abducts  B,  a  girl  under  fifteen  years  of  age,  from  her 
father's  house,  believing  in  good  faith  and  on  reasonable  grounds 
that  B  is  eighteen  years  of  age.  A  commits  the  offence  of 
abduction,  although  if  B  had  been  eighteen  years  of  age  she 
would  not  have  been  within  the  statute. 

•  See  Illustration  (7). 

2  E.  V.  Tolsoii,  1889,  23  Q.  B.  1).  168. 

3  MacKaghten's  Case,  1843,  IOC.  &  F.  200. 

*  Level's  Case,  1640,  1  Hale,  474. 

5  B.  v.  Prmce,  1875,  2  C.  C.  R.  154. 


THE    CRIMINAL    LAW  29 

(5.)  ^  A,  in  the  last  illustration,  abducts  B,  in  ignorance  of 
her  age,  and  without  making  any  inquiry  about  it.  A  commits 
the  offence  of  abduction. 

(6.)  ^  A  received  into  her  house,  not  being  a  registered  lunatic 
asylum,  several  persons  to  be  medically  treated,  being  persons 
who  were  in  fact  lunatics  though  A  honestly  believed  on  reason- 
able grounds  that  they  were  not  lunatics  but  sufferers  under 
other  disorders.  Notwithstanding  such  belief  A  committed  an 
offence  against  8  ife  9  Vict.  c.  100,  s.  44. 

(7.)  ^  A  statute  provides  that  it  shall  be  an  offence  to  serve  a 
constable  with  drink  while  he  is  on  duty,  or  knowingly  to  sell 
or  allow  any  person  to  sell  intoxicating  liquor  to  a  child  except  in 
a  corked  and  sealed  bottle.  The  Court  must  decide  with  reference 
to  the  facts  of  any  case  that  may  arise,  whether  the  legislature 
intended  that  any  person  charged  should  act  at  his  peril,  or  that 
he  should  not  be  convicted  unless  he  is  proved  to  have  had  actual 
or  constructive  knowledge  that  the  constable  was  on  duty,  or  of 
the  age  of  the  child,  or  the  want  of  corking  or  sealing  of  the 
bottle. 

(8.)  *  A,  a  constable,  honestly  and  on  reasonable  grounds,  but 
wrongly,  believing  B  to  have  committed  murder  and  not  being 
able  otherwise  to  arrest  him  shoots  at  him  and  kills  him.  A  is 
justified.  If  A  had  been  a  pi'ivate  person  his  act  would  have 
been  manslaughter  at  least. 

(9.)  (Submitted.)  B,  pretending  by  way  of  a  practical  joke  to 
be  a  robber,  presents  an  empty  pistol  at  A  and  demands  his 
money.  A,  believing  that  B  really  is  a  robber,  kills  B.  A  is 
justified. 

(10.)  (Submitted.)  A  breaks  into  B's  house  in  Dundalk,  at 
5.45  A.M.,  local  mean  time,  supposing  that  it  is  past  six,  but 
forgetting  that  A's  watch  is  set  to  London  time.  A  commits 
burglary. 

'  R.  V.  Prince,  Ibid.  See  judgment  of  Brett,  J.,  p.  169,  and  see  p.  174. 
R.  V.  Tolson,  mip.,  seems  to  be  distinguishable  from  R.  v.  Prince,  only  on 
the  ground  that  al^ducting  a  girl  is  morally  wrong  and  marrying  a  woman 
is  not. 

'-  R.  v.  BiMfiop,  1 S80,  f)  Q.  B.  D.  2r>f). 

■'*  Sherra^  v.  De  RiUzen  (18115),  1  Q.  1>.  918;  lirooLs  v.  M(,<oii  (1002), 
■_'  K.  15.  74.-^,  Emary  v.  Nolloth  (1903),  2  K.  B.  264. 

*  2  Hale,  P.  C.  82,  85,  see  also  Thompxon  v.  Farrer,  1882,  9  Q.  B.  I). 


30  A    DIGEST    OF 


CHAPTER    IV. 

1  PARTIES    TO    THE  COMMISSION  OF  CRIMES— PRINCIPAL 
AND   ACCESSORY 

Article  86. 

principals  in  first  degree. 

^  Whoever  actually  commits,  or  takes  part  in  the  actual 
commission  of  a  crime,  is  a  principal  in  the  first  degree, 
whether  he  is  on  the  spot  when  the  crime  is  committed  or 
not ;  and  if  a  crime  is  committed  partly  in  one  place  and 
partly  in  another,  every  one  who  commits  any  part  of  it  at 
any  place  is  a  principal  in  the  first  degree. 


lUustratioiis. 

(1.)  -'A  lays  poison  for  B,  which  B  takes  in  A's  absence.  A 
is  a  principal  in  the  first  degree. 

(2.)  ^  A  steals  goods  from  a  ship,  and  lays  them  in  a  place  at 
some  distance,  whence  B,  by  previous  concert,  carries  them  away 
for  sale.      A  and  B  are  both  principals  in  the  first  degree. 


Article  37. 

innocent  agent, 

Whoever  commits  a  crime  b}'  an  innocent  agent  is  a 
principal  in  the  first  degree. 

1  2  Hist.  Cr.  Law,  ch.  xxii.  pp.  221-241  ;  Draft  Code,  ss.  71-74. 

-  Foster,  347-50,  give  the  history  of  the  distinction  between  principals 
in. the  first  and  second  degree.  See  also  Hale,  ch.  xxii.  1  P.  C.  233  ; 
Ibid.  ch.  xxxiv.  435,  and  Ibid.  612. 

^  Foster,  349,  says  simplj'  that  A  is  "a  principal  "  without  mentioning 
the  degree,  but  as  no  one  has  "  aided  "or  "  abetted,"  it  would  seem  that 
he  must  be  a  principal  in  the  first  degree. 

*  R.  V.  Kelly,  1847,  2  C.  &  K.  379. 


THE    CRIMIXAL    LAW  31 


Illustrations. 

{\)  ^  A  tells  B,  a  child  under  seven,  to  bring  him  money 
belonging  to  C.      B  does  so.      A  is  a  principal  in  the  first  degree. 

(2.)  -  A,  knowing  a  note  to  be  forged,  asks  B,  who  does  not 
know  it  to  be  forged,  to  get  it  changed  for  him.  B  does  so,  and 
gives  A  the  money.     A  is  a  principal  in  the  first  degree. 

(3.)  ^  B,  in  the  last  illustration,  knows  that  the  note  is  forged. 
A  is  an  accessory  before  the  fact. 


Article  38. 
principals  in  the  second  degree. 

*  Whoever  aids  or  abets  the  actual  commission  of  a  crime, 
either  at  the  place  where  it  is  committed,  or  elsewhere,  is  a 
principal  in  the  second  degree  in  that  crime. 

^Mere  presence  on  the  occasion  when  a  crime  is  com- 
mitted does  not  make  a  person  a  principal  in  the  second 
degree,  even  if  he  neither  makes  any  effort  to  prevent  the 
offence  or  to  cause  the  offender  to  be  apprehended,  but 
such  presence  may  be  evidence  for  the  consideration  of  the 
j  ury  of  an  active  participation  in  the  offence. 

When  the  existence  of  a  particular  intent  forms  part  of 
the  definition  of  an  offence,  a  person  charged  with  aiding  or 
abetting  the  commission  of  the  offence  must  be  shown  to 
have  known  of  the  existence  of  the  intent  on  the  part  of  the 
]ierson  so  aided. 

Illustrations. 

(1.)  ^  A,  B,  and  C  go  out  with  a  common  design  to  rob.  A 
commits  the  robbery  ;   B  stands  by  ready  to  help  ;  C  is  stationed 


'   Deauce.l  fioiii  A',  v.  Manley,  1844,  1  Cox,  C.  C.  104. 

-'  ]{.  V.  Palmer,  1804,  1  Russ.  Cr.   1(>0,  I  New  Rep.  96. 

■'  II.  V.  SoartH,  1802,  R.  &  R.  2.5. 

<  See  cases  in  1  Russ.  Cr.  ISG-loT.  li.  v.  Kdly,  1820,  R.  &  R.  421, 
perhaps  marks  the  limit  Ijetween  a  principal  in  the  second  degree  and  an 
accessory.  In  that  case  R  stole  horses  and  hiougiit  them  to  A,  who  was 
waiting  half  a  mile  off  ;  A  and  V>  tiien  rode  away  on  them.  It  was  licM 
that  A  was  an  accessory  before  tlie  fact.  'I'iic  distinction  is  now  of  n<> 
importance. 

'•  H.    V.  Coney  and  Olhe.rn,  1882,  8   t^.   1'.    D.    .".:{«.      S spr,  i.dly    lli<- 

judgment  of  Cave,  .J.,  .'>36-43. 

"  Foster,  .■}.")0. 


32  A    DIGEST   OF 


some  way  off  to  give  the  ;ilann  if  any  one  comes.  A  is  a  prin- 
cipal in  the  first  degree,  B  and  C  are  principals  in  the  second 
degree. 

(2.)  ^  B  is  indicted  for  inflicting  on  C  an  injury  dangerous  to 
life  with  intent  to  murder.  A  is  indicted  for  aiding  and  abetting 
B.  A  must  be  shown  to  have  known  that  it  was  B's  intent  to 
murder  C,  and  it  is  not  enough  to  show  that  A  helped  B  in  what 
he  did. 

Article  89. 

common  purpose. 

-When  several  persons  take  part  in  the  execution  of  a 
common  criminal  purpose,  each  is  a  principal  in  the  second 
degree,  in  respect  of  every  crime  committed  by  any  one  of 
them  in  the  execution  of  that  purpose. 

If  any  of  the  offenders  commits  a  crime  foreign  to  the 
common  criminal  purpose,  the  others  arc  neither  principals 
in  the  second  degree  nor  accessories  unless  they  actually 
instigate  or  assist  in  its  commission. 

Illustrations. 

(1.)  ^  A  constable  and  his  assistants  go  to  arrest  A  at  a  house 
in  which  are  many  persons.  B,  C,  D,  and  others  come  from  the 
house,  drive  the  constable  and  his  assistants  off,  and  one  of  the 
assistants  is  killed,  either  by  B,  C,  D,  or  one  of  their  party. 
Each  of  their  party  is  equally  responsible  for  the  blow,  whether 
he  actually  struck  it  or  not. 

(2.)  '^  Three  soldiers  go  to  rob  an  orchard.  Two  get  into  a 
fruit  tree.  The  third  stands  at  the  door  with  a  drawn  sword, 
and  stabs  the  owner,  who  tries  to  arrest  him.  The  men  in  the 
tree  are  neither  principals  nor  accessories,  unless  all  three  came 
with  a  common  resolution  to  overcome  all  opposition. 

(3.)  ^  Smugglers  fight  with  revenue  officers.  Tn  the  fight  a 
smuggler  fires  a  gun  which  kills  another  smuggler.     The  gun 


'  R.  V.  Cruse,  1838,  8  C.  <fe  P.  541. 

2  See  cases  referred  to  in  the  Illu-strations.  SeealsoFost.  350-'J;  1  Russ. 
Cr.  757-8,  162,  764,  765-6. 

■*  Sissinghiirst  Jlouse  Cam,  1672,  1st  Resolution  ;  1  Hale,  P.  C.  462. 

*  Foster,  353. 

■^  Plummer''s  Case,  1701,  Foster  352.  More  fullj-  reported  in  Kelynge 
155  (edition  of  1873).      Holt,  in  his  judgment  fully  explains  the  whole  law. 


THE   CRIMINAL    LAW  33 

was  not  fired  at  any  of  the  revenue  officers.  The  man 
who  fired  the  gun  is  responsible  for  the  act,  but  not  his 
companions. 

(•i.)  ^  Two  parties  of  persons  fight  in  the  street  about  the 
i-emoval  of  goods  to  avoid  a  distress.  One  of  the  persons  en- 
gaged kills  a  looker-on,  totally  unconcerned  in  the  affray.  The 
other  persons  present  are  not  responsible  for  his  crime. 

(5.)  -  Two  persons  go  out  to  commit  theft.  One,  unknown  to 
the  other,  puts  a  pistol  in  his  pocket,  and  shoots  a  man  with  it. 
The  other  person  is  not  responsible  for  the  shot. 

(6.)  '^  Three  persons  go  out  to  practise  with  a  rifle  and  manage 
their  practice  so  carelessly  that  a  person  is  killed  by  a  shot  fired 
by  one  of  them  :  all  are  guilty  of  manslaughter. 


Article  -iO. 

ACCESSORIES   BEFORE   THE    FACT. 

*  An  accessory  before  the  fact  is  one  who  "  directly  or 
indirectly  coun.sels,  procures,  or  commands  any  person  to 
commit  any  felony  or  piracy  ^  which  is  committed  in  conse- 
quence of  such  counselling,  procuring,  or  commandment. 

A  person  who  is  present  when  the  crime,  counselled,  &c.,  b}'- 
him,  is  committed  cannot  be  convicted  as  an  accessory,  but 
may  be  convicted  as  a  principal  in  the  second  degree. 

Every  one  who  would  have  been  an  accessory  before  the 
fact  if  the  crime  committed,  procured,  or  commanded  had 
been  a  felony,  is  a  principal  if  that  crime  is  misdemeanour. 

Knowledge  that  a  person  intends  to  commit  a  crime,  and 
conduct  connected  with  and  influenced  by  such  knowledge, 
is  not  enough  to  make  a  per.son  v/ho  possesses  such  know- 
ledge, or  .so  conducts  himself,  an  accessory  before  the  fact  to 

'   A*.  V.  HodijHon  and  Olhem,  1730,  1  Leach,  6. 
■  Per  Park,'.!.,  Dufey's  Ccuip,  1830,  1  Lew.  104. 
'  R.  V.  Sa/mou,  \HHO,  0  Q.  B.  D.  7'J. 

*  1  Hale,  P.  C.  01  r,  ;  2  Hawk.  P.  C.  442  ;  1  Ruhs.  Cr.  10.")  171.  As  to 
priiif.ipals  ami  aeceKHoricH  in  forgery,  see  2  Rush.  Cr.  08!(-0!)4.  In  tlie 
following  ArtieleH  I  use  the  wonl  "  instigate  "  as  equivalent  to  "counsel, 
procure,  or  coinnianfl."     Draft  Code,  s.  71. 

*  /{.  V.  rVx,7«r.  IS33,  ",  (;.  &  I».  r>35. 
«   II  A;    12  Will.  (;.  7,  H.  0. 


34  A    DIGEST   OF 


any  such  critne,  unless  ho  does  something  to  encourage  its 
commission  actively. 

Illustrations. 

(1.)  -^  A  supplies  B  with  corrosive  sublimate,  knowing  that  B 
means  to  use  it  to  procure  her  own  abortion,  but  being  unwilling 
that  she  should  take  the  poison,  and  giving  it  to  her  because  she 
threatened  to  kill  herself  if  he  did  not.  B  does  so  use  it  and 
dies.  Even  if  B  is  guilty  of  murdering  herself,  A  is  not  an 
accessory  before  the  fact  to  such  murder. 

(2.)  -  B  and  C  agree  to  fight  a  prize  fight  for  a  sum  of  money  ; 
A,  knowing  of  their  intention,  acts  as  stakeholder.  B  and  C 
fight  and  C  is  killed.  A  is  not  present  at  the  fight  and  has  no 
concern  with  it  except  being  stakeholder.  Even  if  in  such  a 
case  there  can  be  an  accessory  before  the  fact,  A  is  not  accessory 
before  the  fact  to  the  manslaughter  of  C. 

Article  41. 

where  crime  suggested  is  committed  in  a  dibterent  way 

3  When  a  person  instigates  another  to  commit  a  crime,  and 
the  person  so  instigated  commits  the  crime  which  he  was 
instigated  to  commit,  but  in  a  different  way  from  that  in 
which  he  was  instigated  to  commit  it,  the  instigator  is  an 
accessory  before  the  fact  to  the  crime. 

Illustration. 

A  advises  B  to  murder  C  by  shooting,  B  murders  C  by 
stabbing,  A  is  accessory  before  the  fact  to  the  murder  of  C. 

Article  42. 

where  crime   committed   is  probable  consequence  of 
crime  suggested. 

*  If  a  person  instigates  another  to  commit  a  crime,  and  the 
person  so  instigated  commits  a  crime  different  from  the  one 

1  R.  V.  FretwpJl,  1862,  L.  &  C.  161.  Contrast  with  this  R.  v.  Russell, 
1832,  1  Moody,  356. 

^  R.  V.  Taylor,  1875,  2  C.  C.  R.  147. 
3  Foster,  369-70  ;  Draft  Code,  s.  72. 
i  Ibid.  370  ;  Ibid.  s.  72. 


THE   CRIMINAL    LAW  35 

which  he  was  instigated  to  commit,  but  likely  to  be  caused 
by  such  instigation,  the  instigator  is  an  accessory  before  the 
fact. 

Illustrations. 

(1.)^  A  describes  C  to  B,  and  instigates  B  to  murder  C.  B 
murders  D,  whom  he  believes  to  be  C,  because  D  corresponds 
with  A's  description  of  C.  A  is  accessory  before  the  fact  to  the 
murder  of  D. 

(2.)  ^  A  instigates  B  to  rob  C,  B  does  so,  C  resists  and  B  kills 
C.      A  is  accessory  before  the  fact  to  the  murder  of  C. 

(3.)  -  A  advises  B  to  murder  C  (B's  wife)  by  poison.  B  gives  C 
a  poisoned  apple,  which  C  gives  to  D  (B's  child).  B  permits  D 
to  eat  the  apple,  which  it  does,  and  dies  of  it.  A  is  not  accessory 
to  the  murder  of  D. 


Article   43. 

where  instigation  is  countermanded. 

^  If  an  accessory  before  the  fact  countermands  the  execution 
'•f  the  crime  before  it  is  executed,  he  ceases  to  be  an  acces- 
sory before  the  fact,  if  the  principal  had  notice  of  the 
countermand  before  the  execution  of  the  crime,  but  not 
otherwise. 

Illustration. 

^  A  advises  B  to  muider  C,  and  afterwards,  by  letter,  withdraws 
his  advice.  B  does  murder  C.  A  is  not  an  accessory  before  the 
fact  if  his  letter  reaches  B  before  he  murders  C ;  but  he  is  if  it 
arrives  afterwards. 


'   Foster,  .370. 

-  SauwUrx'  Cane,  1.576,  Plowd.  475  ;   1  Hale,  P.  C.  4.31.      This  flecision 

of  higher  autliority  than  Foster's  dicfa  ;  ami  marks  tlie  limit  to  which 
lliey  exteml,  if  it  <loes  not  tlirow  some  doubt  on  them. 

^  1  Hale,  P.  C.  (ilS.  In  the  case  supposed  the  instigator  would  jjrfili- 
ahly  have  committed  tlie  offence  of  inciting  to  the  commission  of  a  crime 
(Art.  4H),  thougli  lie  would  not  he  an  accessory  before  the  fact.  It  may 
al)40  \h'  doubted  whether  this  doctrine  wouhl  extend  to  the  case  of  a  man 
who  did  his  l>e.ft  to  countermand  his  advice,  but  failed,  as  by  an  accident 
in  the  course  of  j)ost,  Ac. 

1)  2 


36  A   DIGEST   OF 


Article   44. 

instigation  to  commit  a  crime  different  from  the  one 
committed. 

^  When  a  person  instigates  another  to  commit  a  crime, 
and  the  person  so  instigated  commits  a  different  crime,  the 
instigator  is  not  accessory  before  the  fact  to  the  crime  so 
committed. 

Illustratio7i. 

-  A  instigates  B  to  murder  C,  B  murders  D,  A  is  not  accessory 
before  the  fact  to  the  murder  of  D. 


Article   45. 

accessories  and  principals  in  second  degree  treated 
as  principals  in  first  degree. 

^  Accessories  before  the  fact,  principals  in  the  second 
degree,  and  principals  in  the  iirst  degree  in  any  felony,  are 
each  considered  as  having  committed  that  felony,  and  each 
may  be  indicted,  tried,  convicted  and  punished  as  if  he 
alone  and  independently  had  committed  the  felony ; 
although  any  other  party  to  the  crime  may  have  been 
acquitted. 

Article   46. 
accessories  after   the   fact. 

*  Every  one  is  an  accessory  after  the  fact  to  felony  who 
knowing   a   felony   to   have   been   committed   by    another, 

1  Cf.  Draft  Code,  s.  72. 

2  Foster,  369. 

3  24  &  25  Vict.  c.  94,  s.  2,  as  explained  by  B.  v.  Huf/hen,  1860,  Bell, 
C.  C.  242.  The  section  referred  to  applies  only  to  cases  in  which  a 
felony  has  been  committed,  and  does  not  affect  the  common  law  offence 
of  inciting  to  commit  a  felony  (Art.  48).  R.  v.  (4re(jory,  1867,  1  C.  C. 
R.   77. 

*  1  Russ.  Cr.  171-174  ;  I  Hale,  P.  C.  618-20  ;  2  Hawk.  P.  C.  Bk.  II. 
c.  29  ;  Draft  Code,  s.  73. 


THE   CRIMIXAL    LAW  37 

receives,  comforts,  or  assists  him,^  in  order  to  enable  him  to 
escape  from  punishment ; 

or  rescues  him  from  an  arrest  for  the  felon}^ ; 

or  having  him  in  custody  for  the  felony,  intentionally  and 
voluntarily  suffers  him  to  escape  ; 

or  opposes  his  apprehension, 

Provided  that  a  married  woman  who  receives,  comforts,  or 
reHeves  her  husband  knowing  him  to  have  committed  a 
felony,  does  not  thereby  become  an  accessory  after  the 
fact. 

Article  47. 

punishment  of  accessories  after  the  fact  in  general 
and  under  the  consolidation  acts. 

-  Every  accessory  after  the  fact  to  any  felony  is  guilty  of 
a  substantive  felony  for  which  he  may  be  convicted,  whether 
the  principal  felon  has  or  has  not  been  previously  convicted, 
or  is  or  is  not  amenable  to  justice,  and  for  which  he  may  be 
indicted  either  together  with  the  principal  felon  or  alone 
(except  where  it  is  otherwise  specially  enacted).. 

Every  such  offender  is  liable,  at  the  discretion  of  the 
Court,  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  hard  labour,  and  the  Court  may  require  the 
offender  to  enter  into  his  own  recognisance,  and  to  find 
sureties  (both  or  either)  for  keeping  the  peace,  in  addition 
to  such  imprisonment ;  but  no  such  person  can  be  im- 
prisoned for  not  finding  sureties  for  any  period  exceeding 
one  year. 

•  Every  accessory  after  the  fact  to  any  felony  punishable 

'  As  to  the  addition  of  these  words,  see  2  Hawk.  P.  C.  Bk.  II.  c.  29, 
88.  28-9. 

2  24  &  2-}  Vict.  c.  94,  ss.  .S,  4,  as  interpreted  by  li.  v.  FuUon,  18G2, 
L.  &  C.  217.  Each  of  the  Consolidation  Acts  contains  a  section  providing 
specifically  that  accesi-ories  before  the  fact,  and  ))rincipals  in  the  second 
degree  to  felonies  punishable  thereby,  shall  be  liable  to  the  same  punish- 
ment as  the  princijjals.  These  provisions  would  seem  to  be  co-extensive 
in  their  operation  with  those  of  24  &  25  Viet.  c.  94,  bh.  3,  4.  See  the 
next  note. 

^  24  k  2r»  Vict.  c.  90,  bh.  98-1  17  ;  Ibid.  c.  97,  hs.  f.li  7.'{  :  Ibid,  c  9S, 
""    4fi  .-,!  :    |l,i,|.  ,;.  1)9,  ss.  35  .^S  ;   Ibid.  c.   100,  ss.  ti7   71. 


38  A   DIGEST  OF 


under  the  Larceny  Act,  1861 ;  the  Malicious  Injuries  to 
Property  Act,  1861  ;  the  Forgery  Act,  1861  ;  the  Coinage 
Offences  Act,  1861 ;  or  the  Offences  against  the  Person  Act, 
1861  (except  murder),  is  liable  upon  conviction  to  the 
punishments  above  mentioned. 


THE    C RIM IX A L    LAW  39 


CHAPTER  V 

1  DEGREES  IX  THE  COMMISSION  OF  CRIME— INCITEMENT— 
CONSPIRACY— A  TTEMPTS 

Article  48. 

incitement  to  commit  a  crime. 

^  Every  one  who  incites  any  person  to  commit  any  crime 
commits  a  misdemeanour,  whether  the  crime  is  or  is  not 
committed. 

Article  49. 

conspiracy  to  commit  a  crime. 

^  When  two  or  more  persons  agree  to  commit  any  crime, 
they  are  guilty  of  the  misdemeanour  called  conspiracy  whether 
the  crime  is  committed  or  not,*  and  though  in  the  circum- 
stances of  the  case  it  would  be  impossible  to  commit  it. 

Article  50. 

definition  of  attempts. 

■'  An  attempt  to  commit  a  crime  is  an  act  done  with  intent 
to  commit  that  crime,  and  forming  part  of  a  series  of  acts, 
which  would  constitute  its  actual  commission  if  it  were  not 
inten-ujjted. 

'  •_'  Hist.  Cr.  Law,  cli.  xxii.  pp.  221-24L 

-  /.'.  V.  Ili'iiiinx,  1801,  2  Ea.  o-22  ;  R.  v.  Schofield,  1784,  Cald.  397  ; 
I:.  V.  (rritjory,  1867,  1  C.  C.  77.  In  R.  v.  Ltddinglon,  I8:i9,  9  C.  & 
P.  79,  a  man  was  cliargcd  with  inciting  a  man  to  connnit  suicide,  and 
Aldei'son,  li.,  directed  an  accjuittal,  saying,  "  Tliis  is  a  case  wlucli  l)y  law 
we  cannot  try."  Tlie  reasons  for  tliis  tlirection  are  not  given,  and  a  note 
to  the  case  does  not  make  tliem  clear.  As  to  the  case  of  R.  v.  William, 
■ee  Note  II. 

2  Mnlrahy  v.  A'.,  18HH,  L.  R.  3  H.   L.  all..  •'<■"  =    /•'•  ^-   /'"""•   '•'^"-. 
iUiX,  C  (J.  .'{Hi,  and  see  cases  collc<:l<<l  in  Kwscoc,  Cr.  Kv.  4(»1    4(14. 

*  //.  V.    Whilrhnrch,  1890,  24  (}.   M.  1).  420. 

'  See  cases  referred  lo  in  liluHti'alions,  and  !)iiift  Code,  s.  74. 


40  A    DIGEST   OF 


The  point  at  which  such  a  series  of  acts  begins  cannot  be 
defined  ;  but  depends  upon  the  circumstances  of  each  par- 
ticuUir  case. 

An  act  done  with  intent  to  commit  a  crime,  the  commission 
of  which  in  the  manner  proposed  was,  in  fact,  impossible,  is 
an  attempt  to  commit  that  crime. 

The  offence  of  attempting  to  commit  a  crime  may  be  com- 
mitted in  cases  in  which  the  offender  voluntarily  desists  from 
the  actual  commission  of  the  crime  itself. 


Illustrations. 

(1.)  ^  A  writes  rfnd  sends  to  B  a  letter,  inciting  B  to  commit  a 
felony.  B  does  not  read  the  letter.  A  has  attempted  to  incite 
B  to  commit  a  felony. 

(2.)  ^  A  procures  dies  for  the  purpose  of  coining  bad  money. 
A  has  attempted  to  coin  bad  money. 

(3.)^  B  is  a  contractor  for  the  supply  of  meat  to  a  regiment. 
A  is  B's  servant,  and  his  duty  is  to  return  the  surplus  meat  to  B, 
after  weighing  out  a  certain  allowance  to  each  mess.  By  using  a 
short  weight,  A  sets  aside,  as  surplus,  sixty  pounds  instead  of 
fifteen  pounds,  intending  to  steal  the  forty-five  pounds,  and 
return  the  fifteen  pounds  to  B.  A's  fraud  is  discovered  before 
he  carries  the  meat  away.  A  attempts  to  steal  the  forty-five 
pounds  as  soon  as  he  sets  aside  the  sixty  pounds. 

(4.)  *  A,  by  false  pretences  as  to  the  number  of  loaves  he  had 
delivered  under  a  contract,  obtains  credit  in  account  for  the 
loaves,  and  would  have  been  paid  for  them  but  for  the  discovery 
of  the  fraud.  This  is  an  attempt  to  obtain  money  by  false 
pretences,  as  it  was  the  last  step  depending  on  the  defendant 
towards  obtaining  it. 

(5.)  ^  A,  after  threatening  to  shoot  B,  points  a  pistol  at  her,  his 
hands  are  seized  before  he  can  fire,  but  his  finger  and  thumb  are 
seen  fumbling  with  the  trigger.      A  has  attempted  to  shoot  B. 

(6.)  ^  A  procures  indecent  prints  with  intent  to  publish  them. 
A  has  attempted  to  publish  indecent  prints.      (Semble.) 


1  B.  V.  Raiv^ford,  1874,  31  L.  T.  (N.S.)  488. 

2  Rohert<s  Case,  1855,  D.  &  P.,  539. 

3  Cheesemmi'H  Ca.ie,  1862,  L.  &  C,  140. 
•*  //.  V.  Eaghton,  1855,  D.  &  P.,  515. 

5  R.  V.  Duckworth,  1892,  2  Q.  B.  83. 

6  Dngdate  v.  R.,  1853,  1  K.  &  B.  435  ;  R.  v.  Diir/dah,  D.  &  P.  64. 


THE   CRIMINAL   LAW  41 

(7.)  ^  A  goes  to  Birmingham  to  buy  dies  to  make  bad  money.  A 
has  not  attempted  to  make  bad  money. 

(8.)  -  A  having  in  his  possession  indecent  prints,  forms  an  intent 
to  pubHsh  them.  A  has  not  attempted  to  publish  indecent 
prints. 

(9.)^  A  mistaking  a  log  of  wood  for  B,  and  intending  to 
murder  B,  strikes  the  log  of  wood  with  an  axe.  A  has  not 
attempted  to  murder  B. 

(10.)'*  A  puts  his  hand  into  B's  pocket  with  intent  to  steal 
whatever  he  finds  there  ;  the  pocket  is  empty.  A  has  attempted 
to  steal  from  B's  person. 

(11.)  ^  A  kneels  down  in  front  of  a  stack  of  corn,  and  liglits 
a  lucifer  match,  intending  to  set  the  stack  on  fire ;  but  observing 
that  he  is  watched  blows  it  out.  A  has  attempted  to  set  fire  to 
the  stack. 

Article  51. 
attempt — misdemeanour. 

Every  attempt  to  commit  an  offence,  whether  treason, 
felony,  or  misdemeanour,''  is  a  misdemeanour,  unless  it  is 
otherwise  specially  provided  for. 

"  Every  attempt  to  commit  felony  is  punishable  with 
imprisonment  with  hard  labour. 

'  Per  Jervis,  C.J.,  in  Roberts's  Case,  1855,  D.  &  P.  551. 

-  Dugda/e  v.  /?.,  1857,  1  E.  &  B.  435  ;  A',  v.  Dngdale,  D.  &  P.  64. 

3  Per  Bramwell,  B.,  in  B.  v.  McPher.son,  1857,  D.  &  B.  -201. 

*  R.  V.  Ring,  1892,  61  L.  J.  M.  C.  116,  following  R.  v.  Brown,  1889, 
■-'4  Q.  B.  D.  357.  R.  v.  Brown  is  important  as  explicitly  over-ruling 
R.  V.  Collins,  1864,  L.  &  C.  471,  which  was  decided  on  facts  similar  to 
those  in  R.  v.  Ring,  but  in  the  contrary  way.  The  prisoner's  intent  to 
steal  whatever  he  could  find  is  more  definitely  stated  in  R.  v.  Collins, 
than  in  R.  v.  Ring,  but  it  must  be  taken  to  liave  existed  in  tlie  latter 
'.use. 

•'  /;•.  V.  Taylor,  1859,  1  F.  &  F.  511. 

"  It  is  difficult  to  put  a  case  of  an  attempt  to  commit  treason,  as  an 
"vert  act  done  with  intent  to  connnit  treason  would  generally  Ijo  treason  : 
nee  the  next  (.'hajjter.  In  the  case  of  treasons  detined  in  Arts.  59  and  60 
there  miglit  be  an  attempt.  See  many  cases  collected  in  1  Huss.  Cr. 
189   iy(»,  and  2  Hist.  (Jr.  Law,  221-7. 

7  :J  Ceo.  4,  c.   114. 


42 


A   DIGJ^ST  OF 


PART 


OFFENCES  AGAINST  PUBLIC  ORDER— INTERNAL 
AND  EXTERNAL 


CHAP.  VI.— High  Tre.vson— TiiE.\- 
SONABLE  Felonies,  and  Assaults 
ON  THE  King — Disclo.sing  Of- 
ficial Secrets  —  Misapplying 
Marks  of  a  Public  Department. 

CHAP.  VII.—  Affrays  —  Unlaw- 
ful Assemblies — Routs — Riots 
—  Tumultuous  Petitioning  — 
Unlawful  Drilling. 

CHAP.    VIII.— Offences    against 


Internal  Tranquillity  by  Un- 
lawful Engagements  and  Com- 
binations AND  Confederacies. 
CHAP.  IX. — Offences  against  Ex- 
ternal Public  Tranquillity  — 
Offences  against   Foreign  Na- 

TION.S. 

CHAP.  X.—  Offences  A(!AiNST  Per- 
sons ON  THE  High  Seas — Piracy 
— Slave-Trading. 


*  CHAPTER  VI 

HiGff  treason;  treasonable  felonies,  and  assaults 
ON  tjie  king,  tjisg losing  official  secrets,  mis- 
applying MARKS  OF  A  PUBLIC  DEPARTMENT. 


AllTICLE   52. 
HIGH   TREASON    BY    IMAGINING   THE    KING's   DEATH. 

^  Every  one  commits  high  treason  who  forms  and  displays 
by  any  overt  act,  or  by  publishing  any  printing  or  writing,  an 
intention  to  kill  or  destroy  the  King,  or  to  do  him  any  bodily 
harm  tending  to  death  or  destruction,  maim  or  wounding, 
imprisonment  or  restraint. 

Article  53. 

WHAT   AMOUNTS   TO    IMAGINING   THE  KING's   DEATH. 

^  Every  one  is  deemed  to  have  formed  an  intention  to  put 
the  King  to  death  who  forms  and  displays  by  any  overt  act 
an  intention. 

*  See  2  Hist.  Cr.  Law,  ch.  xxiii.  pp.  241-97,  and  Draft  Code,  Part  V. 

1  25  Edw.  3,  St.  5,  c.  2  ;  36  Geo.  3,  c.  7,  ss.  1,0;  57  Geo.  3,  c.  6  ;  II 
Vict.  c.  12,  s.  2  ;  and  Draft  Code,  s.  75. 

2  Foster's  Discourse  of  H.  T.  ch.  i.  s.  5,  pp.  195-7  ;  ch.  ii.  ss.  3,  4,  6, 
pp.  211-13  ;  Draft  Code,  s.  75. 


THE   CEIMINAL   LAW  43 

(a.)  to  depose  the  King  from  the  exercise  of  his  royal 
authority  in  any  part  of  his  dominions  ;  or 

(h.)  to  levy  war  against  the  King  either  in  the  first  or  in 
the  second  of  the  senses  assigned  to  that  expression  in 
Article  54  ;  or 

(c.)  to  instigate  any  foreigner  with  force  to  invade  this 
realm  or  any  other  of  the  King's  dominions  ;  or 

(cf.)  who  conspires  to  levy  war  against  the  King  in  the 
first  or  second  bnt  not  in  the  third,  of  the  senses  assigned  to 
that  expression  in  Article  54. 

Article   54. 
high  treason  by  levying  war. 

^  Every  one  commits  high  treason  who  levies  war  agains 
the  King  in  any  of  his  dominions. 

The  expression  "  to  levy  war  "  means — 

(a.)  attacking  in  the  manner  usual  in  war  the  King 
himself  or  his  military  forces,  acting  as  such  b}-  his  orders, 
in  the  execution  of  their  duty  ; 

(h.)  attempting  by  an  insurrection  of  whatever  nature  by 
force  or  constraint  to  compel  the  King  to  change  his  mea- 
sures or  counsels,  or  to  intimidate  or  overawe  both  Houses  or 
either  House  of  Parliament ; 

(c.)  attempting  by  an  insurrection  of  whatever  kind  to 
effect  any  general  public  object. 

But  the  expression  "  to  levy  Avar  against  the  King  "  does 
not  inchide  any  insurrection  against  any  private  person  for 
the  purpose  of  inflicting  upon  him  any  i)nvate  wrong,  even 
if  such  insurrection  is  conducted  in  a  warlike  manner. 

■  2')  K<lw.  :i,  St.  5,c.  2  ;  Foster's  Discourse  of  H.  T.  ch.  ii.  ;  as  to  {a.) 
y(:c  Foster,  pji.  2()S  and  209  ;  as  to  (h.)  sec  h.  3  ;  and  see  .36  (ieo.  ',),  c.  7, 
^.  1,  wliieli,  wliilst  in  force,  was  a  statutoiy  lecognition  of  Foster's  doe- 
trine  ;  as  to  (<•. )  see  s.  4  ;  as  to  the  proviso,  see  2.")  Kdw.  .S,  st.  5,  e.  2,  and 
Foster,  j)p.  209-10  ;  see  also  Note  V.  to  and  s.  IF)  of  the  Draft  Code.  In 
J{.  V.  dnllaijhtr  and  olhi.rn,  IHH'A,  15  Cox,  291,  it  was  held  l>y  Coleridge, 
LC.J.,  IJrett,  M.H.,  an<l  Grove,  .).,  that  war  might  he  levied  l)y  a  few 
pertuniM,  using  for  treasonalde  purposes  exi)losives  calculated  to  do  great 
damage.  I  held  the  sanie  at  Livei-jKxjl  in  the  summer  of  1883,  in  U.  v. 
iJ^fuiij,  1883,  I.-)  Cox.  334. 


44  A    DIGEST   OF 


Article   55. 

HIGH   TREASON   BY   ADHERING   TO   THE   KING's   ENEMIES. 

^  Every  one  commits  high  treason  who,  cither  in  the  reahn 
or  without  it,  actively  assists  a  public  enemy  at  war  with  the 
King.  Rebels  may  be  public  enemies  within  the  meaning 
of  this  Article. 

Article  56. 

adherence  to  a  de  facto  king  not  treason. 

^  No  person  who  attends  upon  the  king  and  sovereign  lord 
of  this  land  for  the  time  being,  in  his  person,  and  does  him 
true  and  faithful  service  of  allegiance  in  the  same,  or  is  in 
other  places  by  his  commandment  in  his  wars  within  this 
land  or  without,  is  for  any  such  act  guilty  of  treason  [even  if 
the  king  de  facto  should  not  be  king  dejure]. 

Article   57. 

KILLING   THE    KING'S   WIFE   OR   SON. 

^  Every  one  commits  high  treason  who  forms  and  displays 
by  any  overt  act  an  intention 

(a.)  to  kill  the  wife  of  a  king  regnant ;  or, 

(6.)  to  kill  that  son  of  a  king  or  queen  regnant  who  is  for 
the  time  being  heir-apparent  to  the  king  or  queen. 

Article    58. 

when  words  are  treason. 

*  The  speaking  of  words  expressive  of  the  intentions  above 
mentioned  is  not  an  overt  act  within  the  meaning  of  Articles 
52,  53,  and  57. 

1  25  Edw.  3,  St.  5,  c.  2,  as  explained  by  Hale,  1  P.  C.  159-69.  An 
officer  betraying  his  post  is  a  traitor  at  common  law,  though  such  offences 
are  usually  dealt  with  under  martial  law  ;  see  I  Hale,  108.  I  suppose  a 
deserter  in  the  field  who  joins  the  enemy  commits  high  treason  as  well  as 
a  military  offence.      Draft  Code,  s.  75. 

-   1 1  Hen.  7,  c.  1  ;  and  see  6th  Rep.  C.  L.  C.  p.  23. 

3  25  Edw.  3,  St.  15,  c.  2,  as  explained  in  1  Hale,  P.  C.  124-129. 
Draft  Code,  s.  75, 

•*  Foster,  200-207. 


THE    CRIMINAL   LAW  45 


The  writing  of  such  words  is  such  an  overt  act. 

The  speaking  or  writing  of  words  accompanied  by  or 
explanatory  of  conduct  connected  with  the  execution  of  such 
intentions  is  such  an  act. 

The  speaking  of  words  of  advice,  consultation,  or  command, 
or  otherwise  connected  with  the  execution  of  such  intentions, 
is  such  an  act. 

Article  59. 

VIOLATING   THE    KING'S   WIFE,   ETC. 

^  Ever}-  one  commits  high  treason  who  violates  (whether 
by  her  own  consent  or  not) 

the  wife  of  a  king  regnant  ;  or 

that  daughter  of  the  king  or  queen  regnant  who  at  the 
time  is  his  or  her  eldest  daughter,  if  she  never  has  been 
married,  and  (perhaps)  if  she  is  a  widow,  and  (probably)  if 
her  father  or  mother  is  alive ;  or 

the  wife  of  that  son  of  a  king  or  queen  regnant  who  for  the 
time  being  is  heir-apparent  of  such  king  or  queen. 

Article  60. 

killing  the  chancellor,  etc. 

-  Every  one  commits  high  treason  who  slays  the  chancellor, 
or  the  treasurer,  or  the  king's  justices  of  the  one  bench  or 

1  25  Eilw.  3,  St.  5,  c.  2,  as  explained  liy  Hale,  1  P.  C.  12S.  Draft  Code, 
8.  75. 

2  It  maybe  permissible  to  suggest  (as  mere  matter  of  curiosity)  a  doubt 
whether  this  wcnild  now  a|)]dy  to  all  the  judges  of  the  Supreme  (!ourt  or 
only  to  tliose  who  are  not  memlters  of  the  Chancery  Division  (25  Edw.  .S, 
8t.  5,  c.  2).  It  is  enacted  by  13  Eliz.  c.  2,  that  every  one  conunits  high 
treason  who  uses,  or  puts  in  use,  in  any  place  within  this  realm,  or  in  any 
of  the  Queen's  <lf)miiiion,  any  bull,  writing,  instrument  of  absolution  or 
reconciliation  obt<'iiiic-rl  from  the  Hisliop  of  Rome  to  those  who  will  lie  con- 
tented to  forsjike  the  due  obedience  to  the  Queen  and  to  yield  and  subject 
themselves  to  the  authority  of  the  liishop  of  Rome,  or  who  willingly  re- 
ceive absolution  or  reconcilialirin  under  any  such  instrument.  Tiiis  enact- 
ment is  printed  in  the  Reviscil  Statutes,  but  by  !)  &  10  Viet.  c.  59  it  is 
repealed  so  far  only  as  the  same  imposes  the  penalties  or  punishments 
therein  mentione<l.  Whether  the  effect  of  this  is  to  nuike  the  using  i>f 
such  liulls  a  IrwiKon  which  cannot  be  punished,  1  do  not  know,  nor  does  it 


46  A    DIGEST   OF 


the  other,  justices  in  eyre  or  justice  of  assize,  and  all  other 
justices  assigned  to  hear  and  dett'rmine  being  in  their  places 
doing  their  offices.     . 

Article  61. 

punishment  for  treason. 

1  Every  one  how  is  convicted  of  high  treason  must  be 
sentenced  to  be  hanged  by  the  neck  until  he  is  dead ;  but 
His  Majesty  may  (if  the  offender  is  a  man)  direct,  by  a 
warrant  signed  by  one  of  his  principal  Secretaries  of  State, 
that  instead  thereof  such  offender's  head  shall  be  severed 
from  his  body  whilst  alive. 

Article    62. 

ALL   principals   IN    TREASON. 

-Every  person  who  in  the  case  of  felony  would  be  an 
accessory  before  or  after  the  fiict  is  in  the  case  of  high 
treason  a  principal  traitor,  ^  but  a  person  who  knowingly 
comforts  or  receives  a  traitor  so  far  partakes  of  the  nature 
of  an  accessory  that  he  cannot  be  tried  till  the  principal  is 
convicted. 

much  matter.  As  the  9  &  10  Vict.  c.  59  further  provides  that  the  repeal 
of  the  penalty  is  not  to  make  the  forl)i(lden  acts  lawful,  it  is  impossible  to 
be  quite  sure  that  doing  them  would  not  lie  a  statutory  misdemeanour.  As 
to  which  see  the  6th  Rep.  C.  L.  C.  pp.  35-41.  I  know  not  why  1.3  Eliz. 
c.  2,  was  not  repealed  simply. 

1  For  common  law  judgments  see  Chitty,  Crim.  Law,  702.  It  was 
modified  by  .SO  (leo.  .3,  c.  48,  as  to  women  (who  before  that  Act  were 
liable  to  be  bmmt  alive  for  treason),  as  to  men  by  54  Geo.  3,  c.  146,  and 
33  &  34  Vict.  c.  23,  s.  31.  The  odd  exception  made  in  the  parenthesis 
arises  thus  :  the  Act  30  Geo.  3,  c.  48,  applies  only  to  women,  and  the 
54  Geo.  3,  c.  146,  only  to  men.  The  proviso  as  to  beheading  occui-a  in  the 
second  only.  The  Act  of  1870  repeals  parts  of  the  Acts  of  1790  and  1814. 
It  would  seem,  however,  that  the  power  exists  at  common  law.  See 
Foster,  269-70,  The  Act  (31  Vict.  c.  24)  for  executing  sentence  of  death 
within  gaols  does  not  apply  to  cases  of  treason.  Indeed  ss.  2  and  16 
together  appear  to  exclude  its  operation  in  such  cases.  An  execution  for 
treason  would,  therefore,  it  would  seem,  have  to  be  public.  Sir  E.  Coke's 
Scriptural  reasons  for  the  punishment  of  treason  may  be  seen  in  3  Inst. 
211.     Cf.  Draft  Code,  s.  75. 

2  Foster,  343,  and  see  .341-6. 

3  1  Hale,  P.  C.  238  ;  Foster,  345-6  ;  and  see  2  Hist.  Cr.  Law. 


TEE   CRIMINAL    LAW  47 

Article   63. 
treasonable  felonies. 

^  Every  one  is  guilty  of  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life  who  -forms  any  of  the 
intentions  hereinafter  mentioned,  and  expresses  such  inten- 
tion either  by  any  overt  act  or  by  publishing  any  printing  or 
writing ;  ^  that  is  to  say, 

(a.)  an  intention  to  depose  the  King,  his  heirs  or  suc- 
cessors, from  the  style,  honour,  and  royal  name  of  the 
Imperial  Crown  of  the  United  Kingdom  or  of  any  other  of 
his  Majesty's  dominions  or  countries ;  or 

(&.)  an  intention  to  levy  war  against  His  Majesty,  His 
heirs  or  successors,  within  any  part  of  the  United  Kingdom 
in  order  by  force  or  constraint  to  compel  him  to  change  his 
measures  or  counsels,  or  in  order  to  put  any  force  or  con- 
straint upon,  or  in  order  to  intimidate  or  overawe,  both 
Houses  or  either  House  of  Parliament ;  or 

(c.)  an  intention  to  move  or  stir  any  foreigner  with  force 
to  invade  the  United  Kingdom  or  an}'  other  of  His  Majesty's 
dominions  or  countries  under  the  obeisance  of  His  Majesty, 
his  heirs  and  successors, 

*  A  conspiracy  to  effect  any  of  the  said  intentions  is  an 
overt  act  within  the  meaning  of  this  Ai'ticle. 

Article   64. 

INCITING    TO    mutiny. 

^  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life,  who  inalicionsly  and 
advisedly  endeavours 

'  11  Vict.  c.  12,  preamljle  and  s.  3  (reilrawii)  ;  Draft  CimIo,  s.  7!'.  Ac- 
cessories after  the  fact  arc  lialde  to  iiiiprisoiiineiit  witii  li.ird  laliour  for 
two  years,  s.   8. 

*  "  Shall  .   .   .   compasH,  imagine,  invent,  devise,  or  intend." 

^  The  words  "  or  by  open  advised  speaking  "  occurred  in  the  Act  as 
originally  passed,  hut  by  s.  4  their  efTect  was  trj  last  for  two  years  only  ; 
they  and  s.  4  were  hotli  repealed  l»v  the  Statute  Law  Revision  Act,  1891. 

«  Mulrahy  v.  //.,  18«8,  L.  K.  3*H.  L.  \\m. 

^  37  fico.  3,  c.  70,  s.  1.  As  to  the  fjunishiiient,  hit  7  Will.  4  it  I  \'itl. 
'  .  01,  s.  2,  and  .'"..-)  k  .10  Vi<:l.  <•.    10  ;    Draft  (Jod.s  s.  Si'. 


48  A    DIGEST   OF 


(a.)  to  seduce  an}'  person  servinf^  in  His  Majesty's  forces 
by  sea  or  land  from  his  thity  and  allegiance  to  his  Majest}^ ;  or 

(b.)  to  incite  or  stir  up  any  such  person  to  commit  any 
act  of  mutiny,  or  to  make  or  endeavour  to  make  any  mutinous 
assembly,  or  to  commit  any  traitorous  or  mutinous  practice 
whatever. 

Article   65. 
disclosure  of  official  information. 

^  Every  one  is  guilty  of  a  misdemeanour  and  is  liable  to 
imprisonment  for  a  year  with  hard  labour  or  to  a  fine  or  to 
both  imprisonment  and  a  fine,  who  does  any  of  the  acts 
hereinafter  specified,  that  is  to  say  : 

(1.)  (a.)  who  for  the  purpose  of  wrongfully  obtaining 
information — 

(i.)  enters  or  is  in  any  part  of  a  place  belonging  to  His 
Majesty  being  a  fortress,  arsenal,  factory,  dockyard,  camp, 
ship,  office,  or  other  like  place  in  which  part  he  is  not 
entitled  to  be  ;  or 

(ii.)  when  lawfully  or  unlawfully  in  any  such  place  as 
aforesaid  either  obtains  any  document,  sketch,  plan,  model, 
or  knowledge  of  any  thing  which  he  is  not  entitled  to  obtain, 
or  2 takes  Avithout  lawful  authority  any  sketch  or  plan;  or 

(iii.)  when  outside  any  fortress,  arsenal,  factory,  dockyard, 
or  camp,  belonging  to  His  Majesty,  -takes  or  attempts  to 
take  without  authority  given  by  or  on  behalf  of  His  Majesty 
any  sketch  or  plan  of  that  fortress,  etc. ;  or 

(b.)  who  knowingly  having  possession  of,  or  control  over, 
any  such  document,  sketch,  plan,  model,  or  knowledge,  as  has 
been  obtained  or  taken  by  means  of  any  act  which  con- 
stitutes an  offence  under  this  Article  or  the  two  following 
Articles,  at  any  time  wilfully  and  without  lawful  authority 
communicates  or  attempts  to  communicate  the  same  to  any 
person  to  whom  the  same  ought  not,  in  the  interests  of  the 
State,  to  be  communicated  at  that  time ;  or 

1  52  &  53  Vict.  c.  52,  s.  1 . 

■^  This  appears  to  be  synonymous  with  "makes." 


THE    CIUMIXAL    LAW  49 

(c.)  who,  after  having  been  intrusted  in  confidence  by  some 
officer  under  His  Majesty  with  any  document,  sketch,  plan, 
model,  or  information  relating  to  any  such  place  as  afore- 
said, or  to  the  naval  or  military  affairs  of  His  Majesty, 
wilfully  and  in  breach  of  such  confidence  communicates  the 
same  Avhen  in  the  interest  of  the  State  it  ought  not  to  be 
communicated ;  or 

(2.)  who,  having  possession  of  any  document,  sketch,  plan, 
model,  or  information  relating  to  any  fortress,  arsenal,  factory, 
dockyard,  camp,  ship,  office,  or  other  like  place  belonging  to 
His  Majesty,  or  to  the  naval  or  military  affairs  of  His 
Majesty,  in  whatever  manner  the  same  has  been  obtained  or 
taken,  at  any  time  wilfully  communicates  the  same  to  any 
person  to  whom  he  knoAvs  the  same  ought  not,  in  the  interest 
of  the  State,  to  be  communicated  at  that  time. 

(3.)  Every  one  is  guilty  of  a  felony  and  is  liable  to  penal 
servitude  for  life  wdio  commits  any  offence  previously 
mentioned  in  this  Article;^  if  he  intended  to  communicate 
to  a  foreign  State  any  information,  document,  sketch,  plan, 
model,  or  knowledge  obtained  or  taken  by  him,  or  intrusted 
to  him  as  aforesaid  ;  or 

if  he  communicates  the  same  to  any  agent  of  a  foreign 
State. 

Article  66. 

breach  of  official  trust.^ 

•*  Any  person  guilty  of  a  breach  of  official  trust  as  herein- 
after defined 

'  "Any  act  declared  by  this  section  to  Ijc  a  niisdenieanoiii- "  are  tlic 
words  of  the  Act;  hut  fjiiaere  whether  this  applies  to  ('2),  wliicli  is  only 
maile  an  offence  l)y  reference  to  ( 1 ). 

-  The  Ollicial  Secrets  Act  1889,  hy  wliich  the  otTeucea  nientioiicil  in 
Articles  0'),  (iO,  07  are  constituted,  is  so  drafted  as  to  Ijc  very  dilliLult  to 
understand.  Section  1  suhs.  (1)  creates  al^out  eiglity  difl'erent  oH'eme.s,  all 
of  which  in  almost  every  conceivahle  ease  are  made  oflences  over  again  witli 
the  same  penalties  attaclied  to  tlieni  )>y  sulis.  (2).  Sul>s.  (.S)  makes  ail  of 
tliein  folrjnies  if  a  certain  condition  is  pr<jved  wliich  is  almost  certain  never 
It}  )h:  really  ahsent.  Section  2  makes  nearly  all  the  same  oll'enccs,  and 
hardly  any  others,  separate  suhstantive  oflences  if  conmiilted  l)y  ccitain 
jK-THonH,  and  attaches  to  them  the  same  penalties  as  are  jnovidcd  hy  siction 
I  when  they  are  connnitted  hy  anybody  else. 

^  .'»•-'  A-  ."..{  \i.i.  .•.   ','>,  H.  2. 

E 


50  A    DIGEST   OF 


(a.)  if  the  ctiiimiuiiiratioii  is  made  or  attempted  to  be 
made  to  a  foreign  State,  is  guilty  of  felony  and  liable  to 
penal  servitude  for  life  ; 

(b.)  in  other  cases  is  guilty  of  misdemeanour  and  is 
liable  to  imprisonment  with  or  without  hard  labour  for  not 
exceeding  one  year,  or  to  a  fine,  or  both. 

A  person  is  guilty  of  a  breach  of  official  trust  who,  by 
means  of  his  holding  or  having  held  an  office  under  His 
Majesty,  has  lawfull}'  or  unlawfully  cither  obtained  possession 
of  or  control  over  any  document,  sketch,  ])lan,  or  model,  or 
acquired  any  information,  and  at  any  time  corruptly  or 
contrar}'  to  his  official  duty  communicates  or  attempts  to 
communicate  that  document,  sketch,  plan,  model,  or  in- 
formation to  any  person  to  whom  the  same  ought  not,  in 
the  interest  of  the  State,  or  otherwise  in  the  public  interest, 
to  be  communicated  at  that  time. 

This  article  applies  to  a  person  holding  a  contract  with 
any  department  of  the  Government  or  with  the  holder  of 
any  office  under  His  Majesty  as  such  holder,  where  such 
contract  involves  an  obligation  of  secrecy,  and  to  any  person 
employed  by  any  person  or  body  of  persons  holding  such  a 
contract,  who  is  under  a  like  obligation  of  secrecy  as  if  the 
person  holding  the  contract  and  the  person  so  emjjloyed  were 
respectively  holders  of  an  office  under  His  Majesty. 


AUTICLE    67. 

INCITEMENT   TO   DISCLOSURE   OF   OFFICIAL   INFORMATION 
AND   BREACH    OF    OFFICIAL   TRUST. 

^  Any  person  who  incites  or  counsels,  or  attempts  to 
procure,  another  person  to  commit  an  offence  under  Arts. 
65,  66,  is  guilty  of  a  misdemeanour,  and  liable  to  the  same 
punishment  as  if  he  had  committed  the  offence. 

I  52  &  53  Vict.  c.  52,  s.  3 


THE    CRIMIXAL    LAW  51 

Article    68. 

misapplication  of  the  mark  of  a  public   department. 

^  Every  person  is  guilty  of  a  misdemeanour  and  is  liable 
to  imprisonment  with  hard  labour  for  two  years,  who  without 
lawful  authority,  proof  of  which  lies  on  the  party  accused, 
applies  any  of  the  marks  described  in  the  first  Schedule  to 
the  Public  Stores  Act  1875  in  or  on  any  stores  therein 
described. 

Article    69. 
assaults  on  the  king. 

-  Every  one  who  does  any  of  the  acts  hereinafter  specified  is 
guilty  of  a  high  misdemeanour,  and  is  liable  upon  conviction 
thereof  to  be  sentenced  to  seven  years  penal  servitude,  and 
during  the  period  of  such  imprisonment  to  be  publicly  or 
privately  whipped  as  often  (not  exceeding  thrice)  and  in 
such  manner  as  the  Court  directs ;  that  is  to  say, 

{a.)  Whoever  wilfully  and  with  intent  to  injure  the  person 
of  the  King  or  to  alarm  His  Majesty,  or  to  break  the  public 
peace,  or  so  as  to  endanger  the  public  peace, — 

(i.)  points,  aims,  or  presents  at  or  near  the  person  of  the 
King  any  ^firearm,  loaded  or  not,  or  any  other  kind  of 
arm  ;  or 

(ii.)  discharges  at  or  near  the  person  of  the  King  any 
loaded  arms ;  or 

(iii.)  discharges  or  causes  to  be  discharged  any  explosive 
material  near  the  person  of  the  King  ;  or 

riv.)  strikes,  or  strikes  at,  the  person  of  the  King  in  '  any 
rnannc.T  whatever ;  or 

'   :\H  k   H'J  Vict.  r:.  2r>,  8.  4. 

-  'i  &.  (j  Vict.  c.  'A,  HH.  1,  2  (reilruwii).  I  have  oniillcil  a  few  iiianifestly 
HUjH.-HliiotiH  wohIh.      Draft  ('<j<le,  s.  80. 

•*  "  Any  gun,  jjIhIuI,  or  any  other  <loHcrijit  if /n  of  fiicarnis,  or  of  otlicr  arms 
wliatwHjver. " 

'   "  \\'it)i  any  offcUHivc  wea[)on  or  in  any  other  -    .'" 


52  A    DIGEST   OF 


(v.)  throws  anything  at  or  upon  the  person  of  the 
King ;  or 

(vi.)  attempts  to  do  any  of  the  things  specified  in  (ii.), 
(iii.),  (iv.),  or  (v.). 

(b.)  Whoever  produces  or  has  near  the  person  of  the 
King  any  ^arm  or  destructive  or  dangerous  thing  with 
intent  to  use  the  same  to  injure  the  person  of  the  King  or 
to  alarm  His  Majesty. 


Article   70. 

contempts  against  the   king. 

^  Ever}''  one  commits  a  misdemeanour  who  is  guilty  of  any 
contempt  against  the  person  of  His  Majesty,  or  his  royal 
dignity,  by  means  of  any  contumelious,  insulting,  or  dis- 
paraging words,  acts,  or  gestures. 


Article   71. 

solemnising  or  assisting  at  marriage  of  a  member  of 
the  royal  family. 

^  Every  person  commits  a  misdemeanour  who  knowingly 
or  wilfully  presumes  to  solemnise,  or  to  assist,  or  to  be 
present  at  the  celebration  of,  any  marriage  of  any  descendant 
of  the  body  of  King  George  the  Second,  male  or  female 
(other   than    the    issue    of  princesses    married  into   foreign 

1  "  Any  gun,  pistol,  or  any  other  description  of  firearms,  or  of  other  arms 
whatsoever. " 

-  I  have  taken  the  words  of  the  7th  Rep.  C.  L.  C.  p.  122,  founded  on 
Hawkins,  P.  C.  bk.  i.  ch.  xxiii. ,  which  contains  much  obsolete  and  even 
moi'e  indefinite  and  undefinable  matter.  See,  too,  6th  Rep.  C.  L.  C.  p.  32, 
and  note.  Hawkins  treats  contempts  against  the  judges  of  the  King's 
Courts  under  this  head.  Contempt  of  Court  seems  to  me  hardly  to  be  a 
branch  of  the  criminal  law. 

3  12  Geo.  3,  c.  II.  The  punishment  is  praemunire,  as  explained  by  Coke, 
1  Inst.  130  a  ;  see  7th  Rep.  C.  L.  C.  jj.  37. 


THE    CRIMIXAL    LAW  53 

families),  or  at  his  or  her  making  any  matrimonial  contract 
without  the  consent  specified  in  12  Geo.  3,  c.  11. 

^  Every  |3erson  committing  such  a  misdemeanour  is  put  out 
of  the  King's  protection.  His  lands,  tenements,  goods,  and 
chattels  are  forfeited  to  the  King,  and  he  is  to  be  im- 
prisoned for  life  (perhaps,  at  the  King's  pleasure). 

>  3  Inst.  1-26  ;  1  Russ.  Cr.  900. 


54  A    D/OEST   OF 


CHAPTER  VII 

AFFRAYS,  UNLAWFUL  ASSEMBLIES,  BOUTS,  RIOTS,  TUMUL- 
TUOUS PETITIONING  AND  UNLAWFUL  DRILLING 

Article    72. 

sending  challenges  and  provoking  to  fight. 

Every  one  commits  a  misdemeanour  who 

(a.)  1  challenges  any  other  person  to  fight  a  duel  ;  or 

(&.)  ^  endeavours  by  words,  or  by  writings,  to  provoke  any 

other  person  to  challenge  the  offender  or  to  commit  a  breach 

of  the  peace. 

Artjcle    73. 

going  ahmed  so  as  to  cause  fear. 

^  Every  one  conniiits  a  misdemeanour  who  goes  armed  in 
public,  without  lawful  occasion,  in  such  a  manner  as  to 
alarm  the  public. 

Article    74, 

AFFRAY. 

*  An  affray  is  the  fighting  of  two  or  more  persons  in  a 
public  place  to  the  terror  of  His  Majesty's  subjects.  Every 
affray  is  a  misdemeanour. 

1  3  Inst.  158  ;   I  Riiss.  Cr.  396  ;  Draft  Code,  s.  97. 

2  B.  V.  Phillips,  1805,  6  East,  464.  It  appears  from  the  judgment  in 
this  case  (pp.  470-5)  that  the  offence  defined  in  clause  (b.)  is  only  a  special 
illustration  of  the  general  law  as  to  incitement. 

^  2  Edw.  3,  t.  3,  paraphrased  with  reference  to  the  explanations  given 
in  1  Hawk.  P.  C.  488-9. 

*  3  Inst.  158  ;  1  Russ.  Cr.  390  ;  Draft  Code,  s.  90. 


THE    CRIMINAL    LAW  55 


Article   75. 
unlawful  assembly. 

^  An  unlawful  assembly  is  an  assembly  of  three  or  more 
persons : — 

(a.)  with  intent  to  commit  a  crime  by  open  force  ;  or 

(6.)  with  intent  to  carry  out  any  common  purpose,  lawful 
or  unlawful,  in  such  a  manner  as  to  give  firm  and  courageous 
persons  in  the  neighbourhood  of  such  assembly  reasonable 
grounds  to  apprehend  a  breach  of  the  peace  in  consequence 
of  it. 

Every  unlawful  assembly  is  a  misdemeanour. 

Illustrations. 

(a.)  -  Sixteen  persons  meet  for  the  purpose  of  going  out  to 
commit  the  offence  of  being  by  night,  unlawfully,  upon  land, 
armed,  in  pursuit  of  game.      This  is  an  unlawful  assembly. 

(b.)  ^  A,  B,  and  C  meet  for  the  purpose  of  concerting  an 
indictable  fraud.  This,  tliough  a  conspiracy,  is  not  an  unlawful 
assembly. 

(c. )  *  A,  B,  and  C  having  met  for  a  lawful  purpose,  quarrel  and 
fight.      This  (though  an  affray)  is  not  an  unlawful  assembly. 

(d.)^  A  large  number  of  persons  hold  a  meeting  to  consider  a 
petition  to  Parliament  lawful  in  itself  ;  but  they  assemble  in  such 
numVjers,  with  such  a  show  of  force  and  organisation,  and  when 
assembled  make  use  of  such  language,  as  to  lead  persons  of 
ordinary  firniness  and  courage  in  the  neighbourhood  to  apprehend 
a  Vjreach  of  the  peace.      This  is  an  unlawful  assembly. 


'  liifxjk'.s  Al)t.  "Riot  ";  Viner's  Abt.  "Riot";  Lambanle,  cli.  v. 
172-184  ;  Dalton,  pp.  :M0-14  ;  1  Hawk.  P.  C.  513-16.  See  also  Report 
of  Criminal  Code  C<JiiiiiiinKi<)ii  of  1X70,  p.  20,  and  Draft  Code,  ss.  84,  80. 

'^  It.  V.  lirodrihh,  iSHj,  (j  C.  &  1*.  r)71.  The  meeting  in  this  ease  was  in 
a  private  house. 

^  (SiitMnTKiJ. )     Compare  1  Hawk.  1*.  ('.  .1 15. 

«   1  Hawk.  P.  C.  p.  515. 

<'  Hulfords.  liirhy,  1822,  W  Stark ie,  N.  P.  10(5  8  ;  1  St.  Tr.  N.  S.  1217, 
1218  ;   li.  V.   Vina  Hi,  18.S!»,  'J  C.  &  P.  HI  ;  2  St.  Tr.  N.  S.   1081,  1082. 


56  A    DIGEST   OF 


AUTICLE     70. 
ROUTS. 

^  A  rout  is  an  unlawful  assembly  which  has  made  a  motion 

towards  the  execution  of  the  common  purpose  of  the  persons 
assembled. 

Article   77, 

RIOTS. 

^  A  riot  is  an  unlawful  assembly  which  has  actually  bco'iin 
to  execute  the  purpose  for  which  it  assembled,  by  a  breach 
of  the  peace,  and  to  the  terror  of  the  public  ;   or 

2  a  lawful  assembly  may  become  a  riot  if  the  persons 
assembled  form  and  proceed  to  execute  an  unlawful  purpose 
to  the  terror  of  the  people,  although  they  had  not  that 
purpose  when  they  assembled. 

^  Every  person  convicted  of  riot  is  liable  to  be  sentenced 
to  hard  labour. 

Illustration. 

A,  B,  and  C  meet  at  A's  house  for  the  purpose  of  beating  D,  who 
lives  a  mile  off.  They  then  go  together  to  D  and  there  beat  him. 
At  A's  house  the  meeting  is  an  unlawful  assembly,  on  the  road 
it  is  a  rout,  and  when  the  attack  is  made  upon  T)  it  is  a  riot. 

Article  78. 

preventing  reading  proclamation  and  continuing  to 
riot  after  proclamation. 

*  Whenever  twelve  persons  or  more  are  unlawfully,  riotously 
and  tumultuously  assembled  together,  to  the  disturbance  of 
the  public  peace,-''  it  is  the  duty  of  the  justices  of  the  peace, 

1  See  note  to  Article  75.      Draft  Code,  ss.  85,  87. 

-  Founded  on  the  language  of  Holt,  C.  .J.,  in  /'.  v.  SoUy,  1707,  1 1  Mod. 
116. 

a  3  Geo.  4,  0.  114. 

*  1  Geo.  1,  St.  2,  c.  5,  ss.  I,  2,  .3  (redrawn).      Draft  Code,  ss.  88,  89. 
^  Actual  riot  4s  not  necessary.      R.  v.  J  amen,   18.31,  5  C.  &  P.  153. 


THE   CRIMINAL   LAW  57 

and  the  sheriff  and  under  sheriff  of  the  county,  or  of  the 
mayor,  bailiffs,  or  other  head  officers,  or  justices  of  the  peace 
of  a  city  or  town  corporate,  to  resort  to  the  place  where 
such  assembly  is,  and  among  the  rioters,  or  as  near  to  them 
as  the  person  making  the  proclamation  can  safely  come,  with 
a  loud  voice  command  or  cause  to  be  commanded  silence  to 
be,  and  then  openly  and  with  loud  voice  make  or  cause  to  be 
made  a  proclamation  ^  in  these  words  or  like  in  effect : 

"  Our  Sovereign  Lord  the  King  chargeth  and  com- 
■'  mandeth  all  persons  being  assembled  immediately  to  dis- 
'  perse  themselves,  and  peaceably  to  depart  to  their  habita- 
"  tions,  or  to  their  lawful  business,  upon  the  pains  contained 
"  in  the  Act  made  in  the  first  year  of  King  George  for 
"  preventing  tumultuous  and  riotous  assemblies.  God  save 
"  the  King." 

All  persons  commit  felony,  and  are  liable  to  ^  penal  servi- 
tude for  life,  who 

(rt.)  ^  wilfully  and  knowingly  oppose,  obstruct,  let,  hinder, 
or  hurt  any  person  who  begins  to  make  or  goes  to  make 
the  said  proclamation,  whereby  such  proclamation  is  not 
made,  or 

(Ji.)  ■*  who  remain,  or  continue  together  unlawfully,  riotously 
and  tumultuously,  for  one  hour  after  the  proclamation  afore- 
said was  made ;  or,  if  they  know  that  its  making  was 
hindered,  for  one  hour  after  it  would  have  been  made  if  it 
had  not  been  hindered  as  aforesaid. 

Article   79. 

riotous  demolition  of  houses,  etc. 

•"•All  persons  are  guilty  of  felony,  and  are  liabh-  to  ])onal 
rvitudi-    for    lifi.-,   who,  being   riotously   and   t  mniiltuously 

'  Tlie  omiKKion  of  "Ccxl  save  the  King"  defeats  tlie  effect  of  tlie  j)i()- 
clariiation.      11.  v.  Child,  \H'M),  4  C.  &  P.  442. 

-  Sulmtituted  for  ileath  l)y  7  Will.  4  &  I  Vict.  c.  91,  k.  1,  an.l  (lie  l'<iial 
Servitude  ActH.      See  too  '>  k  (J  Vict.  c.   19  (S.  L.  R. ). 

3   1  ( leo.  1 ,  Ht.  2,  c.  5,  H.  r.. 

*   Iljid.  hH.   1  and  /i  (redrawn). 

•'  24  k  2.'.  Vi.t.  r.  97,  h.    II  (re.lrawn).      Draft    C.mI.-,  h.  9(1. 


58  A    DIGEST   OF 


assembled  together  to  the  disturbance  of  the  public  peace, 
unlawfully  and  with  force  demolish,  or  pull  down,  or 
destroy,  any  ^  building,  public  building,  machinery,  or  mining 
plant,  as  defined  in  the  note  hereto,  or  begin  to  do  so. 

Article  80. 

riotous  damage  of  houses,  etc. 

^All  persons  are  guilty  of  a  misdemeanour,  and  liable  to 
seven  years  penal  servitude,  who  being  so  assembled  as 
aforesaid  unlawfully  and  with  force  injure  or  damage  any  of 
the  things  aforesaid  :  and  any  person  indicted  for  the  felony  in 
Article  79  may  be  convicted  for  the  misdemeanour  in  this 
Article. 

Article  81. 

persons  assembled  in  order  to  smuggle. 

^  Every  one  commits  a  misdemeanour  and  is  liable  to  a  fine 
of  not  more  than  £500,  and  not  less  than  £100,  who  wath  any 

'  "  Building  "  means  any  churcli,  chapel,  meeting-house,  or  other  place 
of  divine  ■worship,  or  any  house,  stable,  coach-house,  out-house,  warehouse, 
office,  shop,  mill,  malt-house,  hop-oast,  barn,  granary,  shed,  hovel  or  fold, 
or  any  l)uilding  or  erection,  used  in  farming  land,  or  in  carrying  on  any  trade 
or  manufacture,  or  any  branch  thereof. 

"  Public  building  "  means  any  building  other  than  such  as  are  in  this 
section  before  mentioned,  belonging  to  tlieKing,  or  to  any  county,  riding, 
division,  city,  borough,  poor-law  union,  parisli  or  place,  or  belonging  to 
any  imiversity  or  college,  or  hall  of  any  university,  or  to  any  inn  of  court, 
or  devoted  or  dedicated  to  public  use  or  ornament,  or  erected  or  maintained 
by  public  subscription  or  contribution. 

"  Machinery  "  means  "  any  machinery,  whether  fixed  or  movable,  pre- 
pared for,  or  employed  in,  any  manufacture,  or  in  any  l)ranch  thereof." 

"  Mining  plant  "means  "  any  steam-engine,  or  other  engine  for  sinking, 
working,  ventilating,  or  draining  any  mine,  or  any  staitli,  building,  or 
erection  used  in  conducting  tlie  business  of  any  mine,  or  any  bridge, 
waggon-way,  or  trunk  for  convej'ing  minerals  from  any  mine." 

^  24  &  25  Vict.  c.  97,  s.  12  (redrawn).      Draft  Code,  s.  91. 

3  42  &  43  Vict.  c.  21,  s.  10  and  39  &  40  Vict.  c.  36,  s.  189.  Tlie  former 
section  replaces  s.  188  of  the  latter  Act,  by  force  of  s.  14  of  the  former  Act. 
As  the  sections  stand  they  are  still  obscure  in  some  points.  I  believe  them 
to  mean  what  is  stated  in  tlie  text.  The  first  part  of  the  Article  gives  the 
effect  of  42  &  43  Vict.  c.  21,  s.  10,  with  only  a  sliglit  change  in  the  order 
of  the  words.  The  second  part  is  wiiat  I  suppose  to  be  the  meaning  of 
39  &  40  Vict.  0.  36,  s.  1 89.     That  section  begins  by  providing  that  every 


THE    CRIMINAL   LAW  59 

two  or  more  persons  assembles  for  the  purpose  of  unshipping, 
landing,  running,  carrying  or  concealing  any  spirits,  tobacco, 
or  any  prohibited,  restricted  or  uncustomed  goods,  or  who 
having  so  assembled  unships,  &c.,  such  spirits,  &:c. 

If  any  person  engaged  in  any  of  the  said  offences  is  armed 
with  firearms  or  other  offensive  weapons,  or,  whether  so 
armed  or  not,  is  disguised  in  any  way,  or  being  so  armed  or 
disguised  is  found  within  five  miles  of  the  sea  coast  or  of  any 
tidal  river  with  any  goods  liable  to  forfeiture  under  the 
39  ^*e"  40  Vict.  c.  36,  or  any  other  Act  relating  to  the  Customs, 
he  must  be  imprisoned  with  or  without  hard  labour  for  a 
term  not  exceeding  three  years. 

Every  one  must  be  imprisoned  for  a  term  not  exceeding 
twelve  months  who  procures,  or  hires,  or  deputes,  or  authorises 
any  other  person  to  procure  or  hire  any  person  or  persons  to 
assemble  for  the  purpose  of  being  concerned  in  the  landing 


one  who  procures  or  hires  any  person  to  assemble  for  the  purposes  specified 
in  the  3rd  paragraph  of  the  Article  in  the  text,  is  to  be  imprisoned  for  the 
term  mentioned.  It  then  proceeds  to  enact  that  if  any  person  "  eixjageil  in 
(he  commis'iiou  of  any  of  the  ahoce  ojeure-s"  is  armed,  or  disguised,  &c. ,  he 
is  to  be  imprisoned  for  a  term  not  exceeding  three  years.  "The  above 
offences"  can  hardly  mean  the  offences  mentioned  in  the  earlier  part  of  the 
section,  as  a  man  hiring  another  to  run  goods  would  hardly  be  likely  to  be 
armed  or  disguised,  nor  would  it  make  matters  worse  if  he  were.  I  suppose, 
therefore,  the  "  above  offences"  are  the  offences  specified  in  42  &  43  Vict, 
c.  21,  s.  10,  though  tiie  words  may  probably  refer  also  to  numerous  revenue 
ofiences  created  bj-  39  &  40  Vict.  c.  36,  s.  189.  This,  however,  raises  new 
difhculties.  Upon  this  view  the  latter  part  of  s.  189  enacts  that  a  per-son 
is  to  be  imprisoned  if,  forming  one  of  an  assembly  of  three  people  for 
smuggling  purposes,  he  is,  (1)  armed,  (2)  disguised,  (3)  armed  and  in 
pcssession  of  smuggled  goods  within  five  miles  of  the  coast,  &c.,  (4)  dis- 
guised and  in  possession  of  smuggled  goods,  &c.  It  is  impossible  for  any 
one  to  commit  (3)  or  (4)  unless  he  has  already  committed  either  (1)  or  (2). 
Why,  tlien,  should  any  special  punishment  be  provided  for  iiim?  It  is  like 
enacting  tliat  every  man  who  steals  a  slieep  sliall  Ite  liable  to  penal  servi- 
tude, ami  tiien  enacting  separately  that  if  he  steals  it  on  a  road  or  in  a 
field  lie  sliall  be  liable  to  the  same  punishment.  I  rather  think  the  inten- 
tion must  have  Ijcen  to  provide  for  the  case  of  a  person  found  alone  in 
|>i)hHeH.'4ion  of  KUiuggled  gooils  near  the  coast,  and  armed  or  disguiseil,  and 
that  by  a  »V\\>  in  the  di-afting  some  such  wokIs  as  "or  if  any  pei'son 
whatever"  were  left  out  bef(jre  the  words  "so  arnie<l  or  diwgnised."  A 
coin])arison  of  this  provision  with  s.  2ij0  of  the  lepealed  Act  strengthens 
this  conjecture.  In  that  enactment  an  assembly  of  five  persons  for  the 
|»iirjKisoM  mentioned  fornie<I  one  oH'ence,  and  an  assembly  of  two  ixM'sons 
formed  another.  There  must  be  some  miNtake  in  the  drafting,  as  there  Ih 
no  nominative  case  to  the  verb   "shall   Ik;  imjirisoned.  ' 


60  A    DIGEST   OF 


or  unshipping,  or  carrying,  conveying,  or  concealing  any 
goods  which  are  prohibited  to  be  imported,  or  the  duties  for 
which  have  not  been  paid  or  secured. 

Article  82. 
three  persons  armed  in  pursuit  of  game  by  night. 

^  Every  one  commits  a  misdemeanour,  and  is  liable,  upon 
conviction  thereof,  to  fourteen  years  penal  servitude  or 
three  years  imprisonment  with  but  "^  not  without  hard  labour, 
who,  with  two  or  more  other  persons  together,  between 
the  end  of  the  first  hour  after  sunset  and  the  beginning  of 
the  last  hour  before  sunrise,  unlawfully  enters  or  is  on  any 
land,  whether  open  or  enclosed,  for  the  purpose  of  taking  or 
destroying  hares,  pheasants,  partridges,  grouse,  heath  or  moor 
game,  black  game,  bustards,  or  rabbits,  any  of  such  persons 
being  armed  with  any  gun,  crossbow,  firearms,  bludgeon,  or 
other  offensive  weapon. 

Article   83. 

riotously  preventing  the  sailing  of  ship. 

^  All  *  persons  are  guilty  of  misdemeanour,  and  are  liable 
upon  conviction  thereof  to  twelve  months  and  a  minimum 
term  of  six  months  imprisonment  with  but  -  not  without  hard 
labour,  who,  being  riotously  assembled  together  to  the  number 
of  three  or  more,  unlawfully  and  with  force  prevent,  hinder, 
or  obstruct  the  loading  or  unloading,  or  the  sailing  or  navi- 

*  9  Geo.  4,  c.  69,  s.  9.  The  words  "night"  and  "  game,"  which  occur 
in  the  section,  are  explained  to  the  effect  given  in  the  text  by  ss.  12  and 
13.  The  statute  appears  to  be  intended  rather  to  prevent  the  murderous 
conflicts  which  are  the  frequent  and  natural  results  of  the  oifence  punished 
than  to  protect  game.  I  have  accordingly  introduced  it  here.  By  7  &  8 
Vict.  c.  29,  s.  1,  some  of  the  provisions  of  the  9  Geo.  4,  c.  69,  were  made 
applicable  to  "  any  person  by  night  unlawfully  taking  or  destroying  any 
game  or  rabbits  on  any  public  road,  highway,  or  path,  or  the  sides  thereof, 
or  at  the  openings,  outlets,  or  gates  from  any  sucli  land  into  any  such 
public  road,  highway,  or  patli,  in  the  like  manner  as  upon  any  sucli  land 
open  or  enclosed."  I  do  not  think,  liowever,  that  this  applies  to  the 
provision  in  the  text.      Draft  Code,  s.  94. 

-  See  54  and  55  Vict.  c.  69,  s.  1,  ante  p.  1. 
3  33  Geo.  3,  c.  67. 

*  "Seaman,  keelman,  caster,  ship  carpenter,  or  other  person." 


\ 

THE   CRIMINAL    LAW  61 


gation  of  any  ^  vessel,  or  unlawfully  and  with  force   board 
any  ^  vessel  with  intent  to  do  so. 

Every  person  who  commits  any  of  the  offences  aforesaid 
after  a  previous  conviction  for  any  such  oflfence  is  guilty  of 
felony,  and  is  liable  upon  conviction  thereof  to  fourteen  years 
penal  servitude. 

Article  84. 

forcible  entry  and  detainer. 

-  Every  one  commits  a  misdemeanour  called  a  forcible 
entry  who,  in  order  to  take  possession  thereof,  enters  upon 
any  lands  or  tenements  in  a  violent  manner,  whether  such 
violence  consists  in  actual  force  applied  to  any  other  person 
or  in  threats  of  personal  violence,  or  in  breaking  open  any 
house,  or  in  collecting  together  an  unusual  number  of  persons 
for  the  purpose  of  making  such  entry. 

It  is  immaterial  whether  the  person  making  such  an  entry 
had  or  had  not  a  right  to  enter,  provided  that  a  person  who 
enters  upon  land  or  tenements  of  his  own,  but  which  are  in 
the  custody  of  his  servant  or  bailiff",  does  not  commit  the 
offence  of  forcible  entry. 

Every  one  commits  the  misdemeanour  called  a  forcible 
detainer  who,  having  wrongfully  entered  upon  any  lands  or 
tenements,  detains  such  lands  and  tenements  in  a  manner 
which  would  render  an  entry  upon  them  for  the  purpose  of 
taking  possession  forcible. 

Article  85. 

political  .meetings  in  westminster. 

•^  Every  meeting  is  an  unlawful  assembly  which  consists  of 
more  than  fifty  persons,  and  is  Ik  Id  in  any  street,  square,  or 

'   "  Sliip,  keel,  or  other  vessel." 

'-  1  Rush.  Cr.  404-417;  1  Hawk.  1'.  (J.  4!».')  ."il'J.  Tlioie  aiu  many 
Htatutcs  in  force  on  tlie  Hulijeot,  viz.  .')  Ric.  2,  st.  1,  c.  7  (8  in  common 
e.lition.s) ;  15  Ric.  2,  c.  2  ;  8  Hen.  0,  c.  9  ;  31  Eliz.  c.  1 1  ;  21  Ja.  1.  c.  15. 
TlicHc  Htatutcs  j,'ive  no  definition  of  the  ofl'ence,  hut  j)rovi(le  a  mode  of 
[»r<K;edure  for  giving  poHSCHHion  to  tlie  pai-ty  foi'cihly  <lis|)os.sesHed.  See  on 
foriilile  entry,  I^ou^h  v.  T'lfonl,  IS7<),  1  App.  ('as.  HI.  Draft  Coile, 
H.   95. 

3  57  (Jco.   '^,  c.    19,  H.    2.S. 


62  A    DIGEST   OF 


open  place  in  the  city  or  liberties  of  Westminster,  or  coiintv 
of  Middlesex,  within  a  mile  from  the  gate  of  Westminster 
Hall,  and  out  of  the  parish  of  St.  Paul's,  Covent  Garden,  for 
the  purpose,  or  on  the  pretext,  of  considering  or  preparing 
any  petition  or  address  to  the  King,  or  to  both  Houses 
or  either  House  of  Parliament,  for  alteration  of  matters  in 
Church  or  State,  on  any  day  on  which  either  House  of  Parlia- 
ment meets,  sits,  or  is  summoned  or  adjourned,  or  prorogued 
to  meet  or  sit,  or  on  which  the  ^  High  Court  of  Justice,  or 
any  division  or  judge  thereof,  sits  at  Westminster  Hall : 
Provided  that  this  does  not  extend  to  any  meeting  held  for 
the  election  of  members  of  Parliament,  or  to  persons  attend- 
ing upon  the  business  of  either  House  of  Parliament,  or  the 
said  Court,  or  any  of  its  divisions  or  judges. 

Every  person  who  convenes  or  calls  together,  or  gives  any 
notice  for  convening  or  calling  together,  any  such  meeting 
commits  a  misdemeanour. 

Article  86. 

procurixg  signatures  to  petition  without  authority 
and  tumultuous  petitioning. 

^  Every  one  commits  a  misdemeanour,  and  is  liable,  upon 
conviction  thereof,  to  a  penalty  not  exceeding  the  sum  of 
£100  in  money,  and  three  months  imprisonment, 

(a.)  who  solicits,  labours,  or  procures  the  getting  of  hands 
or  other  consent  of  more  than  twenty  persons  to  any  petition 
or  address  to  the  King,  or  to  either  House  or  both  Houses 
of  Parliament,  for  alteration  of  matters  established  by  law  in 
Church  or  State,  unless  the  matter  of  the  petition  or  address 
has  been  first  consented  to  and  ordered  by  three  or  more  jus- 
tices of  the  county  where  the  matter  arises,  or  by  the  major 
part  of  the  grand  jury  at  the  assizes  or  quarter  sessions,  or 
in  London  by  the  lord  mayor,  aldermen,  and  commons,  in 
common  council  assembled  ;  or 

1  "  His  Majesty's  Courts  of  Chancerj^  King's  Bench,  Common  Pleas,  and 
Exchequer,  or  any  of  them,  or  any  judge  of  any  of  them,"  &c.  These 
words  seem  now  to  be  inoperative. 

2  13  Car.  2,  c.  5. 


THE    CRIMIXAL    LAW  63 

(&.)  who  repairs  to  the  King  or  either  House  of  Parlia- 
ment upon  pretence  of  presenting  any  petition  or  address 
accompanied  by  more  than  ten  persons  at  any  one  time. 

Article  87. 
unlawful  drillixg. 

^  All  assemblies  are  unlawful  which  are  held  in  order  that 
the  persons  assembled  may  train  or  drill  themselves,  or  be 
trained  or  drilled  to  the  use  of  arms,  or  for  the  purpose  of 
practising  military  movements  or  evolutions  without  lawful 
authority. 

Every  person  commits  felony,  and  is  liable  upon  convic- 
tion thereof  to  seven  years  penal  servitude,  who 

(a.)  is  present  at,  or  attends  any  such  assembly,  for  the 
purpose  of  training  or  drilling  any  other  person  to  the  use  of 
arms,  or  the  practice  of  military  exercise,  movements,  or 
evolutions,  or 

(&.)  who  trains  or  drills  any  other  person  to  the  use  of 
arms,  or  the  practice  of  military  exercise,  movements,  or 
evolutions,  or 

(c.)  who  aids  or  assists  therein. 

Every  person  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  two  years  imprisonment  (without  hard 
labour)  and  fine,  who  attends  or  is  present  at  any  such 
assembly  for  the  purpose  of  being,  or  Avho  at  any  such  assem- 
bly is,  trained  or  drilled  to  the  u.se  of  arms,  or  the  practice  of 
njilitary  exercise,  movements,  or  evolutions. 

'  60  (ieo.  3  ami  1  (ieo.  4,  c.  1,  s.  1  (redrawn).      Draft  Code,  ss.  92,  3. 


64  A    DIGEST   OF 


CHAPTER  VIII 

OFFENCES  AGAINST  INTERNAL  TRANQUILLITY  BY  UN- 
LAWFUL ENGAGEMENTS  AND  COMBINATIONS  AND 
CONFEDERA  CIES 

Article  88. 

UNLAWFUL  OATHS.      OATHS  TO  COMMIT  MUIlDElt  Olt    lltE.VSOX. 

^  Every  one  is  guilty  of  felon}^  and  liable  to  penal  servitude 
for  life,  who 

(a.)  administers,  or  cau.ses  to  be  administered,  or  aids  or 
assists  at  the  administering  of  any  oath,  engagement,  or 
obligation  in  the  nature  of  an  oath,  purporting  or  intending 
to  bind  the  person  taking  the  same  to  commit  treason  or 
murder,  or  any  felony  which  on  the  9th  of  July,  1812  was 
punishable  with  death  ;  or 

(b.)  takes  any  such  oath  or  engagement,  not  being  com- 
pelled thereto. 

Article  89. 
other  unlawful  oaths. 

^  Every  one  is  guilty  of  felony,  and  is  liable,  upon  con- 
viction, to  penal  servitude  not  exceeding  seven  years,  who 

(a.)  administers,  or  causes  to  be  administered,  or  is  aiding 
and  assisting  at,  or  present  at  and  consenting  to  the 
administering  or  taking  of  any  oath,  or  engagement  or 
obligation  in  the  nature  of  an  oath,  purporting  or  intending 
to  bind  the  person  taking  the  same — 

(i.)  to  engage  in  any  mutinous  or  seditious  purpose ; 

(ii.)  to  disturb  the  public  peace ; 

1  52  Geo.  3,  c.  104,  ss.  I,  6  (redrawn).  As  to  ijunishmenl  see  in  case 
(a.)  7  Wm.  4  &  1  Vict.  c.  91.  See  2  Hist.  Cr.  Law,  294-7,  and  Draft 
Code,  s.   99. 

-  37  CJeo.  3,  c.  123,  ss,  1,  5  (redrawn). 


THE   CRIMIXAL    LAW  65 

(iii.)  to  be  of  any  association,  society,  or  confederacy  formed 
for  any  such  purpose  ; 

(iv.)  to  obey  the  orders  or  commands  of  any  committee 
or  body  of  men  not  lawfully  constituted,  or  of  any  leader 
or  commander,  or  other  person  not  having  authority  by  law 
for  that  purpose ; 

(v.)  not  to  inform  or  give  evidence  against  any  associate, 
confederate,  or  other  person  ; 

(vi.)  not  to  reveal  or  discover  any  unlawful  combination 
or  confederacy,  or  any  illegal  act  done  or  to  be  done ;  or 
any  illegal  oath  or  engagement  which  may  have  been  ad- 
ministered or  tendered  to,  or  taken  by  ^  any  person,  or  the 
import  of  any  such  oath  or  engagement ;  or  who 

{h.)  takes  any  such  oath  or  engagement,  not  being  com- 
pelled thereto. 

Article   90. 

compulsion,  how  far   a   defexce. 

-  Xo  person  Avho  takes  an}'  oath  or  engagement  referred  to 
in  Article  88  or  Article  89,  under  compulsion,  shall  be  justi- 
fied or  excused  thereby,  unless  within  fourteen  days  after  the 
taking  thereof  in  the  case  of  oaths  referred  to  in  Article  88, 
or  within  four  days  after  the  taking  thereof  in  the  case  of 
oaths  referred  to  in  Article  89,  if  not  prevented  by  actual 
force  or  sickness,  and  then  within  four  days  after  the  cessa- 
tion of  the  hindrance  produced  by  such  force  or  sickness,  he 
declares  the  same,  and  the  whole  of  what  he  knows  touching 
the  same,  and  the  persons  by  whom,  and  in  whose  presence, 
and  when  and  where  such  oath  or  engagement  was  ad- 
ministered or  taken,  by  information  on  oath  before  one  of 
1  lis  Majesty's  justices  of  the  peace,  or  one  of  His  Majesty's 
principal  Secretaries  of  State,  or  His  Majesty's  Privy  Council 
or  if  ho  is  in  actual  service  in  His  Majesty's  forces  by  sea  or 
land,  either  by  such  information  on  oath  as  aforesaid,  or  by 
information  to  his  commanding  officer. 

'   "  SucIj  person  or  persons,  or  to  or  by  any  other  person  or  persons." 
-  :y2   (;eo.   :{,  <;.  104,  s.  2  ;  .S?  fJeo.  W,  c.   12.S,  h.  '2   (oonsolidate.l).      Cf. 
iJraft  Co<le,   s.   23. 

F 


66  A    DIGEST    OF 


Article   91. 
unlawful  clubs  and  societies. 

^  Every  club  or  society  is  an  unlawful  combination  and 
confederacy : 

{a.)  if  its  members  according  to  its  rules,  or  according  to 
any  provision  or  agreement  for  that  purpose,  are  required, 
or  permitted  to,  or  do  take  any  unlawful  oath  or  undertaking 
as  defined  in  Articles  88  and  89,  or  any  oath  not  required  or 
authorised  by  law  ;  or 

(6.)  take  or  in  any  manner  bind  themselves  by  any  such 
oath  or  agreement  on  becoming  or  in  consequence  of  being 
members  of  any  such  society  ;  or 

(c.)  -  take,  subscribe,  or  assent  to  any  test  or  declaration 
not  required  or  authorised  by  law  or  allowed  in  the  manner 
mentioned  in  the  note  hereto,  whether  by  words,  signs,  or 
otherwise,  either  in  order  to  become  or  in  consequence  of 
being  a  member  of  such  society  or  club  ;  or 

(rf.)  if  the  names  of  the  members,  or  any  of  them,  are 
kept  secret  from  the  society  at  large ;  or 

(c.)  ^  if  there  is  any  committee  or  select  body  so  chosen  or 
appointed  that  the  members  constitu,ting  the  same  are  not 

1  (a.)  to  (h.)  inclusive,  39  Geo.  3,  c.  79,  s.  2  ;  (c. )  is  repeated  in  and 
extended  by  57  Geo.  3,  c.  19,  s.  25  ;  (i.)  57  Geo.  3,  c.  19,  s.  25.  The 
preamble  of  39  Geo.  3,  c.  79,  recites  the  existence  of  a  treasonable  con- 
spiracy carried  on  both  in  Great  Britain  and  Ireland  in  order  to  overturn 
the  government,  and  that  in  pursuance  of  this  design  societies  have  been 
instituted  "  inconsistent  witli  tlie  existence  of  regular  government,"'  and 
in  particular,  societies  of  United  Englishmen,  United  Irishmen,  and  United 
Scotsmen,  United  Britons,  and  the  London  Corresponding  Societies.  It 
then  describes  the  proceedings  of  these  societies  ;  and  section  1  enacts 
that  they  shall  be  "  utterly  suppressed  and  prohibited  "  as  "  unlawful  com- 
binations and  confederacies."  Section  2  contains  the  provisions  embodied 
in  the  text.  Section  1  can  hardly  be  regarded  as  creating  a  distinct 
offence,  as  the  societies  which  are  suppressed  no  longer  exist.  It  would, 
however,  make  it  penal  to  revive  those  societies  or  similar  ones. 

-  The  form  of  the  test  must  be  approved  and  subscribed  Ijy  two  or 
more  justices  of  tlie  peace  of  the  coinitj",  and  I'egistered  with  the  clerk  of 
the  peace.  Such  approbation  is  valid  only  till  the  next  general  session  for 
the  county,  unless  on  application  made  by  the  parties  concerned  it  is  then 
confirmed  by  the  majority  of  the  justices  present.     Sect.  3. 

2  In  the  Act  the  words  are  "  or  which  shall  have  any  committee,"  &c., 
such  "that  the  members  constituting  the  same  shall  not  be  known,"  &c. 


THE   CRIMINAL   LAW  67 

known  by  the  society  at  large  to  be  members  of  such  com- 
mittee or  select  body  ;  or 

(/.)  if  there  is  any  president,  secretary,  delegate,  or 
other  officer  so  chosen  or  appointed  that  his  election  or 
appointment  to  such  office  is  not  known  to  the  society  at 
large  ;  or 

{g.)  if  the  names  of  all  the  members,  and  of  all  com- 
mittees or  select  bodies  of  members,  and  of  all  presidents, 
treasurers,  secretaries,  delegates,  and  other  officers,  are  not 
entered  in  a  book  or  books,  to  be  kept  for  that  purpose,  and 
to  be  open  to  the  inspection  of  all  the  members  of  such 
society  ;  or 

{h.)  if  the  society  is  composed  of  different  divisions  or 
branches,  or  of  different  parts  acting  in  any  manner  sepa- 
rately or  distinct  from  each  other,  or  of  which  any  part  has 
any  separate  or  distinct  president,  secretary,  treasurer, 
delegate,  or  other  officer  elected  or  appointed  by  or  for  such 
part,  or  to  act  as  an  officer  for  such  part ;  or 

{%.)  if  the  society  elects,  appoints,  nominates,  or  employs 
any  committee,  delegate,  representative,  or  missionary  to 
meet  or  communicate  w-ith  any  other  society  or  club,  or 
with  any  committee,  delegate,  representative,  or  missionary 
of  any  other  society  or  club,  or  to  induce  or  persuade  any 
person  to  become  a  member  thereof. 


Article   92. 

quaker.s  and  religious  and  charitable  societies 
excepted. 

^  The  provisions  of  Article  91  do  not  extend  to  any 
meeting  or  society  of  Quakers,  or  to  any  meeting  or 
society  formed  ot  assembled  for  purposes  of  a  religious  or 
charitable  nature  only,  in  which  no  other  matter  or  business 


I  8Upp'>iM:  the-  two  "  HliallH  "  arc  jiut  in  fur  tlie  Hivko  of  the  giaiiinuir  only, 
hut  tlie  hciMjinl  "  hIiuII  "  may  puHhiMy  iinli(.ale  tliat  an  intenlion  to  i-onical 
the  nameti  ih  required  aH  well  a«  the  mere  fact  <»f  coni^ealment. 
'    ,'»7  <ieo.  .'{,  c.   10,  hH.  -M,  27  ;   •'{!)  Ceo.  ;{,  e.   7'.»,  h.  o. 

V    2 


68  A    DIGEST   OF 


is  treated  of  or  discussed,  or  to  any  lodge  of  Freemasons,  two 
members  of  which  certify  on  oath  in  the  maimer  prescribed 
in  39  Geo.  S,  c.  79,  s.  6. 

Article    93. 

punishment  of  memhers. 

^  Every  member  of  any  such  society  and  every  person 
who  acts  as  a  member  thereof,  or  directly  or  indirectly  main- 
tains correspondence  or  intercom-se  with  any  such  society, 
or  with  any  division,  branch,  committee,  or  other  select  body, 
president,  treasurer,  secretary,  delegate,  or  other  officer  or 
member  thereof  as  such,  or  aids,  abets,  or  supports  any  such 
society  by  contribution  of  money  or  otherwise,  is  liable  to 
seven  years  penal  servitude. 

Article  94. 

permitting   meetings  of  unlawful  clubs. 

-  Whoever  knowingly  permits  any  meeting  of  any  clul)  or 
society,  or  any  division,  committee,  or  branch  of  a  club  or 
society  declared  by  Article  91  to  be  unlawful,  to  be  held  in 
any  house  or  place  belonging  to  him  or  in  his  occupation,  is 
liable  to  a  penalty  of  £5  for  the  first  offence,  and  for  every 
subsequent  offence  is  deemed  to  be  guilty  of  an  unlawful 
combination  and  confederacy,  and  is  liable  to  the  penalties 
specified  in  Article  93. 

Article   9.5. 

jesuits   and   monks. 

^  Every  Jesuit,  and  every  member  of  any  other  religious 
order,  community,  or  society  of  the  Church  of  Rome  bound 
by  monastic  or  religious  vows  who  comes  into  this  realm, 
commits   a    misdemeanour,    and    is    liable    upon    conviction 

1  .39  Geo.  .3,  c.  79,  ss.  2,  8,  9  ;  57  Geo.  3,  o.  19,  s.  25  (consolidated). 
This  offence  is  also  punishable  summarily. 

2  57  Geo.  3,  c.  19,  s.  28  ;  39  Geo.  3,  c.  79,  s.  13. 

3  10  Geo.  4,  c.  7,  ss.  28,  29. 


TEE   CRIMINAL    LAW  69 

thereof  to  be  banished  from  the  United   Kingdom  for  the 
term  of  his  natural  life, 

^  provided  that  the  Secretary  of  State,  being  a  Protestant, 
may  grant  a  licence  to  any  such  person  to  come  into  the 
United  Kingdom  and  to  remain  there  for  a  period  not  exceed- 
ing six  months ;  and  any  Secretary  of  State  may  revoke  such 
licence  before  the  expiration  of  the  time  mentioned  therein. 
If  the  licensee  does  not  depart  from  the  United  Kingdom 
within  twenty  days  after  the  time  mentioned  in  the  licence, 
or  after  notice  of  revocation  thereof,  he  commits  a  misde- 
meanour, and  is  liable  to  be  banished  from  the  United  King- 
dom for  life. 

-  Every  such  person  commits  a  misdemeanour  who,  within 
anv  part  of  the  United  Kingdom,  admits  any  person  to  be- 
come a  regular  ecclesiastic,  or  brother  or  member  of  any  such 
religious  order,  community,  or  society,  or  aids  or  consents 
thereto,  or  administers  or  causes  to  be  administered,  or  aids  or 
assists  in  administering,  any  vow  or  engagement  purporting 
or  intended  to  bind  the  persons  taking  the  same  to  the  rules, 
ordinances,  or  ceremonies  of  such  religious  order,  community, 
or  society. 

•*  Every  person  commits  a  misdemeanour  and  must  be 
banished  from  the  United  Kingdom  for  life  who  within  any 
part  of  the  United  Kingdom  is  admitted  or  becomes  a  Jesuit 
or  brother  or  member  of  any  other  such  religious  order  or 
community  aforesaid. 

*  Every  person  ordered  to  be  banished  wlio  doL's  n(»t  depart 
from  the  United  Kingdom  within  thirty  day.s  may  be  removed 
to  such  place  as  His  Majesty,  by  the  advice  of  his  Privy 
Council,  directs. 

''  Every  p(!rs(jn  ordered  to  be  banished  who  is  found  at  large 
in  the  United  Kingdom  after  three  months  from  such  order 
is  liable  to  penal  servitude  for  life. 

'^  Nothing  in  this  Article  contained  affects  any  religious 
order,  c(jmiiiunity,  or  establishnient  consisting  of  females 
b<jund  by  rehgioua  or  numastic  vows. 

'    10  (;eo.  4,  c.  7,  H.  .'{1.  -  Iljid.   h.    ."13.  ^  ll.id.   m.    \\\. 

'  Ibid.   M.    :{.'>.  ^  Ibid.   H.    ;}«.  "   10  (ico.  4,  c.  7,  H.  \\1. 


70  A    DIGEST  OF 


Article  96. 
seditious  words  and  libels. 

^  Every  one  commits  a  misdemeanour  who  with  a  seditious 
intention  speaks  any  words  or  publishes  anything  capable  of 
being  a  libel.  If  the  matter  published  consists  of  words 
spoken,  the  offence  is  called  the  speaking  of  seditious  words. 
If  the  matter  so  published  is  contained  in  anything  capable 
of  being  a  libel,  the  offence  is  called  the  publication  of  a 
seditious  libel. 

The  word  "  publish  "  in  this  Article  is  used  in  the  same 
sense  as  in  Article  294,  and  the  word  "  libel "  in  the  second 
of  the  two  senses  specified  in  Article  291. 

-  Persons  sentenced  to  imprisonment  for  seditious  libel 
must  be  treated  as  offenders  of  the  first  division. 

Article  97. 

seditious  conspiracy. 

^  Every  one  commits  a  misdemeanour  who  agrees  with  any 
other  person  or  persons  to  do  any  act  for  the  furtherance  of 
any  seditious  intention  common  to  both  or  all  of  them.  Such 
an  offence  is  called  a  seditious  conspiracy. 

-  Persons  sentenced  to  imprisonment  therefor  must 
(probably)  be  treated  as  offenders  of  the  first  division. 

Article  98. 

seditious  intention  defined. 

■*  A  seditious  intention  is  an  intention  to  bring  into  hatred 
or  contempt,  or  to  excite  disaffection  against  the  person  of, 

1  1  Hawk.  p.  C.  66,  486  ;  4  Steph.  Com.  170  ;  .3  Russ.  Cr.  197  202, 
and  see  2  Hist.  Cr.  Law,  ch.  xxiv.  pp.  298-.396.     Draft  Code,  s.  102. 

^  40  &  41  Vict.  c.  21,  s.  40,  as  modified  l)y  61  &  62  Vict.  c.  41,  s.  6, 
subs.  (5).  See  Art.  9,  p.  6.  Is  seditious  conspiracy  "  sedition  "  within 
the  meaning  of  tlie  former  section  ?  It  is  not  easy  to  attribute  any  other 
meaning  to  the  word. 

3  See  Wright  on  the  Law  of  Conspiracy,  28-.31.      Draft  Code,  s.  102. 

*  60  Geo.  3  and  1  Geo.  4,  c.  8  ;  and  O'Conndl  v.  R.,  1844,  11  CI.  &  F. 
155,  234  ;  St.  Tr.  N.S.  Draft  Code,  s.  102. 


THE   CRIMINAL    LAW  71 

His  Majesty,  his  heirs  or  successors,  or  the  government  and 
constitution  of  the  United  Kingdom,  as  by  law  established, 
or  either  House  of  Parliament,  or  the  administration  of 
justice,  or  to  excite  His  ]\[ajesty's  subjects  to  attempt  other- 
wise than  by  lawful  means,  the  alteration  of  any  matter  in 
Church  or  State  by  law  established,  ^  or  to  incite  any  person 
to  commit  any  crime  in  disturbance  of  the  peace,  or  to  raise 
discontent  or  disaffection  amongst  His  Majesty's  subjects,  or 
to  promote  feelings  of  ill-will  and  hostility  between  different 
classes  of  such  subjects. 

-  An  intention  to  show  that  His  Majesty  has  been  misled 
or  mistaken  in  his  measures,  or  to  point  out  errors  or  defects 
in  the  government  or  constitution  as  by  law  established,  with 
a  view  to  their  reformation,  or  to  excite  His  Majesty's  subjects 
to  attempt  by  lawful  means  the  alteration  of  any  matter  in 
Church  or  State  by  law  established,  or  to  point  out,  in  order 
to  their  removal,  matters  which  are  producing,  or  have  a 
tendency  to  produce,  feelings  of  hatred  and  ill-will  between 
classes  of  His  Majesty's  subjects,  is  not  a  seditious  intention. 


Article  99. 

presumption  as  to  intention. 

^  In  determining  whether  the  intention  with  which  any 
words  were  spoken,  any  document  was  published,  or  any 
agreement  was  made,  was  or  was  not  seditious,  every  person 
must  be  deemed  to  intend  the  consequences  which  would 
naturally  follow  from  his  conduct  at  the  time  and  under  tlic 
circumstances  in  which  he  so  conducted  himself. 

'  These  words  were  not  in  the  earlier  editions  of  tliis  work.  I  do  not 
think  tliey  enlarge  the  sense,  Init  they  make  it  more  explicit.  Tliey  were 
inten<lerl  to  meet  such  cases  as  tliose  of  Most  and  Meitens,  tried  in  1881 
and  IHS-J  for  puhlishin;,' articles  in  the  Fnihcil  ap])laiiding  the  assassina- 
tion of  the  Kmjieror  of  Russia  and  that  of  Lord  Frederick  Cavendish  and 
Mr.  I'iurke  at  Ouhlin.  See  too  the  case  of  It.  v.  Coliiiix,  18.S9,  !)  C.  &  1'. 
4.';«i,  and  judgiiicnt  of   Litlledalc,  .L,  460. 

'■'   It.   V.    Lainhf-rl  and  l'<rry,  1810,  li  Camp.  .'UIS  ;    A',  v.    Vmrmt,   I8.S9, 

»  c.  &  w  ni. 

3  U.  V.  liurdtll,  18-JO,  I  .St.  Tr.  N.S.  I,  4  !'..  &  -Aid.  'I.".  ;  /.'.  v.  Ilnrny, 
1823,  2  IJ.  &  C.  '257. 


72  A    DIGEST   OF 


CHAPTER  IX 

offences  against  external  public  tranquillity 
offences  against  foreign  nations 

Article  100. 

violation  of  ambassadors'  privileges. 

^  Every  one  is  guilty  of  a  misdemeanour  who,  by  force  or 
personal  restraint,  violates  any  privilege  conferred  upon  the 
diplomatic  representatives  of  foreign  countries  by  the  law 
of  nations,  as  collected  by  His  Majesty's  Courts  from  the 
practice  of  different  nations,  and  the  authority  of  writers 
thereon. 

Article  101. 

arrest  of  ambassador. 

-  Every  one  commits  a  misdemeanour  who  sets  forth  or 
prosecutes  or  executes  any  writ  or  jjrocess  whereby  may  be 
arrested  or  imprisoned  the  person  of  any  ambassador  or 
other  public  minister  of  any  foreign  prince  or  state,  autho- 
rised and  received  as  such  by  His  Majesty,  or  any  domestic 
servant  of  any  such  ambassador  or  minister,  registered  as 
such  in  the  office  of  a  principal  secretary  of  state,  or  in  thr 
office  of  the  sheriff  of  London  and  Middlesex. 


Article  102. 
p  u  n  1  s  h  m  e  n  t. 

-  Every  person  who  commits  the  offence  defined  in  Article 
101  is  liable  to  such  pains,  penalties,  and  corporal  punish- 

'  Triquet  and  Others  v.  Bath,  1764,  3  Burr.  1478.  As  to  what  consti- 
tutes authority  on  a  question  of  international  law,  see  R.  v.  Ktyn,  1876, 
•2  Ex.  D,  63. 

-  7  Anne,  c.  12,  ss.  3,  4,  6. 


THE   CRIMINAL    LAW  73 


ment  as  the  Lord  Chancellor,  the  Lord  Chief  Justice  of 
England,  and  the  Lord  Chief  Justice  of  the  Common  Pleas, 
or  any  two  of  them,  shall  judge  fit  to  be  imposed  and 
inflicted. 

Article  103. 

LIBELS   ox   FOREIGN   POWERS. 

^  Every  one  is  guilty  of  a  misdemeanour  who  publishes 
any  libel  tending  to  degrade,  revile,  or  expose  to  hatred 
and  contempt  any  foreign  prince  or  potentate,  ambassador 
or  other  foreign  dignitary,  with  intent  to  disturb  peace  and 
friendship  between  the  United  Kingdom  and  the  country  to 
which  any  such  person  belongs. 

The  word  "  publish  "  is  used  here  in  the  same  sense  as  in 
Article  294,  and  the  word  "  libel "  in  the  second  of  the  two 
senses  specified  in  Article  291. 

(Submitted.)  Nothing  is  an  otfence  against  this  Article 
which  is  a  fair  criticism  on  a  matter  of  public  interest  as 
defined  in  Article  298. 

Article  104. 

ixterferexce  in  foreign  hostilities. 

-  Every  person  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  fine  and  imprisonment  with  hard  labour, 
or  either  of  such  punishments,  at  the  discretion  of  the 
Court,  who  does  any  of  the  following  acts^  without  the 
licence  of  His  Majesty  under  his  sign  manual,  or  signified 
by  Order  in  Council,  or  by  proclamation,  that  is  to  say — 

'  H.  V.  D'Eon,  1764,  1  Blac.  510  ;  A',  v.  Lord  G.  Gordon,  1787,  22  St. 
Tr.  21.'1.  (TliiH  was  the  case  of  a  liljel  on  Marie  Antoinette  seven  years 
after  the  defendant's  acquittal  for  liigh  treason.)  A',  v.  Vint  (1X01)  ;  Vint 
wrote  of  the  Knipeior  Paul,  "  Tiie  ICniperor  of  Russia  is  rendering  himself 
obnoxious  to  his  subjects  by  various  acts  of  tyranny,  and  ridiculous  in  the 
eyes  of  Kurope  by  his  inconsistency  ;  '"  Starkie  (by  Folkaril),  724.  li.  v. 
I'dtitr,  180.'J,  28  State  Trials,  580  ;  (Uli  Rep.  C.  L.  C.  Art.  50,  p.  M. 
Draft  Code,  s.  104. 

*■'  .3.3  &  .34  Vici.  <■.  90  (redrawn).  As  to  the  history  of  this  odence,  aco 
.3  Hist.  Cr.  Law,  257-02. 

^  Sect.    L'). 


74  A    DIGEST  OP 


(a.)  ^  who,  within  the  limits  of  His  Majesty's  dominions, 
prepares  or  tits  out  any  naval  or  military  expedition  to 
proceed  against  the  dominions  of  any  -  friendly  state,  or  is 
engaged  in  such  preparation  or  fitting-out,  or  assists  therein, 
or  is  employed  in  any  capacity  in  such  expedition ;  or 

(b.)  3  who,  being  a  British  subject,  within  or  without  His 
Majesty's  dominions,  accepts  or  agrees  to  accept  any  com- 
mission or  engagement  in  the  military  or  naval  service  of 
any  foreign  state  at  war  with  any  friendly  state,  or,  whether 
a  British  subject  or  not,  within  His  Majesty's  dominions, 
induces  any  other  person  to  accept  or  agree  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  of 
any  such  foreign  state  as  aforesaid ;  or 

(c.)  ^  who,  being  a  British  subject  quits  or  goes  on  board 
any  ship  with  a  view  of  quitting  His  Majesty's  dominions, 
with  intent  to  accept  any  commission  or  engagement  in 
the  military  or  naval  service  of  any  foreign  state  at  war 
with  a  friendly  state,  or,  whether  a  British  subject  or  not, 
within  His  Majesty's  dominions,  induces  any  other  person  to 
quit  or  to  go  on  board  any  ship  with  a  view  of  quitting  His 
Majesty's  dominions  with  the  like  intent;  or 

(d.)  ^  who,  being  the  master  or  owner  of  any  ship,  know- 
ingly either  takes  on  board,  or  engages  to  take  on  board,  or 
has  on  board  such  ship  within  His  Majesty's  dominions  any 
illegally  enlisted  person  ;  as  defined  in  Article  105  ;  or 

(c.)  *^  who,  within  His  Majesty's  dominions,  with  intent 
or  knowledge,  or  having  reasonable  cause  to  believe,  that  the 
same  will  be  employed  in  the  military  or  naval  service 
of  any  foreign  state  at  war  with  any  friendly  state, 

builds,  agrees  to  build,  causes  to  be  built,  equips,  de- 
spatches, or  causes  or  allows  to  be  despatched,  any  ship,  or 
issues  or  delivers  any  commission  for  any  ship. 

Provided  that  a  person  building,  causing  to  be  built,  or 

»  33  &  34  Vict.  c.  90,  s.  11  ;  see  B.  v.  Sandoval,  1887,  56  L.  T.  526. 

2  ' '  Friendly  state "  means  ' '  any  foreign  state  at  peace  with  His 
Majesty  "  (sect  4). 

3  Sect.  4. 
*  Sect.  5. 
»  Sect.  7. 

^  Sect.  8  (redrawn). 


THE    CRIMIXAL    LAW  75 

equipping  a  ship  in  any  of  the  cases  aforesaid,  in  pursuance 
of  a  contract  made  before  the  commencement  of  such  war  as 
aforesaid,  is  not  liable  to  any  of  the  penalties  specified  in  this 
Article  in  respect  of  such  building  or  equipping — 

(i.)  if  forthwith  upon  a  proclamation  of  neutrality  being 
issued  by  His  Majesty  he  gives  notice  to  the  Secretary  of 
State  that  he  is  so  building,  causing  to  be  built,  or  equip- 
ping such  ship,  and  furnishes  such  particulars  of  the  contract 
and  of  any  matters  relating  to,  or  done,  or  to  be  done  under 
the  contract  as  may  be  required  by  the  Secretary  of  State  ; 
and 

(ii.)  if  he  gives  such  security,  and  takes  and  permits  to  be 
taken  such  other  measures,  if  any,  as  the  Secretary  of  State 
may  prescribe  for  ensuring  that  such  ship  shall  not  be 
despatched,  delivered,  or  removed  without  the  licence  of  His 
Majesty  until  the  termination  of  such  war  as  aforesaid. 

Article  105. 
ships,  etc.,  referred  to  in  article  104  to  be  forfeited. 

^  All  ships  and  their  equipments  used  in  or  forming  part  of 
any  such  expedition  as  is  mentioned  in  Article  104  (a.),  or  in 
re.spect  of  which  is  committed  any  of  the  offences  defiined  in 
Article  104  (e.),  and  all  arms  and  munitions  of  war  used 
in  forming  part  of  any  such  expedition  as  is  mentioned  in 
Article  104  («.),  are  forfeited  to  His  Majesty. 

The  expression  "  illegally  enlisted  persons  "  in  Article  104 
(a.)  means — 

(\.)  any  person  who,  being  a  British  subject,  within  or 
without  the  dominions  of  His  Majesty,  has,  without  the 
licence  of  His  Majesty,  accepted  or  agreed  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  ot 
any  foreign  state  at  war  with  any  friendly  state  ; 

(ii.)  any  person  being  a  British  subject,  who,  without  tiie 
licence  of  His  Majesty,  is  about  to  quit  His  Majesty's  domi- 
nions with  intent  io  accept  any  C(jmmissioii  or  engagement  in 

'  Hoc  Bcction    referred  to  in  tlie  Artiolea  meiilionud. 


76  A    DIGEST   OF 


the  military  or  naval  service  of  any  foreign  state  at  war  with 
a  friendly  state ; 

(iii.)  any  person  who  has  been  induced  to  embark  under  a 
misrepresentation  or  false  representation  of  the  service  in 
Avhich  such  person  is  to  be  engaged,  with  the  intent  or  in 
order  that  such  person  may  accept  or  agree  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  of 
any  foreign  state  at  war  with  a  friendly  state. 

Every  ship  referred  to  in  Article  104  (d.)  is  to  be  detained 
until  the  trial  and  conviction  or  acquittal  of  the  master  or 
owner,  and  until  all  penalties  inflicted  on  the  master  or 
owner  have  been  paid,  or  the  master  or  owner  has  given 
security  for  the  payment  of  such  penalties  to  the  satisfaction 
of  two  justices  of  the  peace,  or  other  magistrate  or  magis- 
strates  having  the  authority  of  two  justices  of  the  peace  ;  and 

All  illegally  enlisted  persons  must,  immediately  on  the 
discovery  of  the  offence,  be  taken  on  shore,  and  must  not  be 
allowed  to  return  to  the  shijj. 


Article  106. 

increasing  force  of  ships  for   foreign   belligerents 
and  procuring  enlistment  by  misrepresentation. 

Every  person  is  guilty  of  a  misdemeanour,  and  is  liable  upon 
convicton  thereof  to  the  punishment  specified  in  Article 
104,  who 

(a.)  ^  within  the  dominions  of  His  Majesty,  and  without 
such  licence  as  is  mentioned  in  Article  104,  by  adding  to  the 
number  of  the  guns,  or  by  changing  those  on  board  for 
other  guns,  or  by  the  addition  of  any  equipment  for  war, 
increases  or  augments,  or  procures  to  be  increased  or  aug- 
mented, or  is  knowingly  concerned  in  increasing  or  augment- 
ing, the  warlike  force  of  any  ship  which  at  the  time  of  her 
being  within  the  dominions  of  His  Majesty  was  a  ship  in 
the  military  or  naval  service  of  any  foreign  state  at  war  with 
an^  friendly  state  ;  or 

1  33  &  34  Vict.  c.  90,  s.  10. 


THE    CRIMIXAL    LAW  77 

{h.)  ^  who  induces  any  other  person  to  quit  His  Majesty's 
dominions,  or  to  embark  on  an}-  ship  within  His  Majesty's 
dominions,  under  a  misrepresentation  or  false  representation 
of  the  service  in  which  such  person  is  to  be  engaged,  with 
the  intent  or  in  order  that  such  person  may  accept  or  agree 
to  accept  any  commission  or  engagement  in  the  military 
or  naval  service  of  any  foreign  state  at  war  with  a  friendly 
state. 

Article  107. 
presumption  of  knowledge  of  purpose  for  which  ship 

IS    BUILT. 

-  Where  any  ship  is  built  by  order  of  or  on  behalf  of  any 
foreign  state  when  at  war  with  a  friendly  state  or  is  de- 
livered to  or  to  the  order  of  such  foreign  state,  or  any  person 
who  to  the  knowledge  of  the  person  building  is  an  agent  of 
such  foreign  state,  or  is  paid  for  by  such  foreign  state  or 
such  agent,  and  is  employed  in  the  military  or  naval  service 
of  such  foreign  state,  such  ship  must,  until  the  contrary  is 
proved,  be  deemed  to  have  been  built  with  a  view  to  being  so 
employed,  and  the  burden  of  proving  that  he  did  not  know 
that  the  ship  was  intended  to  be  so  employed  in  the  military 
or  naval  service  of  such  foreign  state  lies  on  the  builder  of 
such  ship. 

1  3.3  &  24  Vict.  c.  90,  s.  G. 
Sect.   9. 


78  A    DIGEST   OF 


CHAPTER  X 

OFFEXCES  AGAIXST  PERSOXS  OX  THE  II WH  SEAS- 
PIE  A  C  Y—SLA  VE-  TRA  DING 

Article  108. 

PIRACY. 

^  Piracy  by  the  law  of  nations  is — 

Taking  a  ship  on  the  high  seas  or  within  the  jurisdic- 
tion of  the  Lord  High  A(hniral  from  the  possession  or  control 
of  those  who  are  hxwfully  entitled  to  it,  and  carrying  away 
the  ship  itself,  or  any  of  its  goods,  tackle,  apparel,  or  furni- 
ture, under  circumstances  which  would  have  amounted  to 
robbery  if  the  act  had  been  done  within  the  body  of  an 
English  county. 

Whoever  commits  piracy  by  the  law  of  nations  is  liable 

1  The  definition  is  founded  on  one  given  bj'  Sir  Charles  Hedges,  in  R.  v. 
Dawson,  1696,  13  St.  Tr.  454,  and  recognised  by  the  Judicial  Committee 
of  the  Privy  Council  in  A.  G.  of  Hong  Kong  v.  Kwok-a-sing,  1873,  L.  R. 
5  P.  C.  179,  199  ;  see,  too,  7th  Rep.  C.  L.  C.  p.  70.  As  to  the  punish- 
ment, the  text  gives  what  I  suppose  is  the  result  of  28  Hen.  8,  c.  15,  ss. 
2  &  3  ;  39  Geo.  3,  c.  37,  s.  1  ;  1  Geo.  4,  c.  90,  s.  1  ;  7  &  8  Geo.  4,  c.  28, 
s.  12.  The  doubt  expressed  at  the  end  of  the  Article  is  founded  on  the 
absence  of  any  express  authority  for  the  affirmative  of  the  proposition,  and 
on  the  absurditj'  of  the  negative.  If  a  King's  ship  were  to  fall  in  with 
an  armed  vessel  belonging  to  no  state,  and  obviously  cruising  for  piratical 
purposes,  would  the  commanding  officer  hesitate  to  seize  that  vessel  because 
it  had  not  actually  taken  a  prize  ?  It  seems  equally  difficidt  to  suppose 
that  the  vessel  would  be  permitted  to  escape,  or  that  it  coidd  lawfully'  be 
arrested  if  the  crew  were  not  pirates.  The  language  of  several  of  the 
statutes  given  in  Articles  112,  113,  and  114,  seems  to  imply  that  a  pirate 
is  the  name  of  a  known  class  of  persons,  like  a  soldier  or  sailor,  and  tliat 
a  man  may  be  a  pirate  though  he  has  never  actually  robbed,  as  he  may  be 
a  soldier  though  he  has  not  actually  fought.  By  13  «fe  14  Vict.  c.  26  the 
Admiralty  Courts  are  empowered  when  anj'  of  His  Majest3''s  ships  attack 
or  are  engaged  with  any  persons  alleged  to  be  pirates  afloat  or  ashore,  to 
"  take  cognisance  of  and  determine  whether  the  persons  or  any  of  them 
so  attacked  or  engaged  were  pirates."  The  object  of  the  Act  was  to 
determine  the  amount  of  certain  rewards  to  be  paid  to  the  captors  ;  no 
definition  of  pirates  is  given.  See  2  Hist.  Cr.  Law,  pp.  27-8,  and  Draft 
Code,  s.  105. 


THE   CRIMINAL   LAW  79 

(it  seems)  to  the  same  punishment  as  if  the  act  constituting 
piracy  had  been  committed  within  the  body  of  an  English 
county. 

It  is  doubtful  whether  persons  cruising  in  armed  vessels 
Avith  intent  to  commit  piracies,  are  pirates  or  not. 

Article  109. 

piracy  with  violence. 

^  Every  one  commits  felony  and  must  upon  conviction 
thereof  be  sentenced  to  -  death  who,  with  intent  to  commit  or 
at  the  time  of  or  immediately  before  or  immediately  after 
committing  the  crime  of  piracy  in  respect  of  any  ship  or 
vessel,  assaults  with  intent  to  murder  any  person  on  board 
of  or  belonging  to  such  ship  or  vessel,  or  stabs,  cuts,  or 
wounds  any  such  person,  or  unlawfully  does  any  act  by 
which  the  life  of  such  person  may  be  endangered. 

Article  110. 

commuting  acts  of  hostility  under  foreign  commission. 

^  Every  one  is  deemed  to  be  a  pirate  who,  being  a  natural- 
bom  subject  of  His  Majesty,  or  denizen  of  this  kingdom, 
commits  any  piracy,  robbery,  or  act  of  hostility  against 
others  His  Majesty's  subjects  on  the  sea  under  colour  of 
any  commission  from  any  foreign  prince  or  state,  or  pretence 
of  authoi'ity  from  any  person  whatever. 

Article  HI. 

AniIKI{I\(;    ox   THE    SEA   TO   THE     KIXG'S     ENEMIES. 

*  Every  one  is  deemed  to  be  a  pirate  who,  being  a  natural- 
burn    subject    or   denizen  of  His  Majesty,  during  any   war 

'  7  Will.  4  &  1  Vict.  c.  88,  s.  2.      Draft  Code,  s.  !(»(;. 

-  Tin;  Alt  .SI  Vict.  <:.  24,  us  to  executions  talcing  place  within  liie  walls 
of  a  prison,  <loes  not  apj)ly  to  this  oirence  ;  see  ss.  2  and  KJ. 

^  11  A.  12  Will.  3,  c.  7,  s.  7.  Kor  this  and  the  four  fnllnwing  Articles, 
wfc  Draft  (J<^le,  HH.  107-10!) 

*  1«  Geo.  2,  c.  .30. 


80  A    DIGEST   OF 


commits  any  hostility  against  His  Majesty's  subjects  upon 
the  sea,  or  in  any  haven,  river,  creek,  or  place  where  the 
admiral  has  power  or  jurisdiction,  by  virtue  or  under  colour 
of  any  commission  from  any  of  His  jMajcsty's  enemies,  or  is 
any  Avay  adherent  or  gives  aid  or  comfort  to  His  Majesty's 
enemies  upon  the  sea  or  in  any  other  such  place  as  aforesaid. 

Article  112. 

boaudixo  ships  and  throwing  cargo  overboard. 

^  Every  one  is  deemed  to  be  a  pirate  who,  belonging  to  any 
ship  or  vessel  whatever,  upon  meeting  any  merchant  ship  or 
vessel  on  the  high  seas,  or  in  any  port,  haven,  or  creek, 
forcibly  boards  and  enters  into  such  ship  or  vessel,  and 
though  he  does  not  seize  or  carry  off  such  ship  or  vessel, 
throws  overboard  or  destroys  any  part  of  the  goods  or  mer- 
chandises belonging  to  such  ship  or  vessel. 

Article  118. 
masters  and  seamen  favouring  pirates. 

2  Every  one  is  deemed  to  be  a  pirate  who,  being  the  com- 
mander or  master  of  any  ship,  or  a  seaman  or  mariner  in  any 
place  where  the  admiral  has  jurisdiction,  betrays  his  trust, 
and  turns  pirate,  enemy,  or  rebel,  and  piratically  and  felo- 
niously runs  away  with  his  ship,  or  any  barge,  boat,  ordnance, 
ammunition,  goods,  or  merchandise  ;  or 

yields  them  up  voluntarily  to  any  pirate  ;  or 

brings  any  seducing  message  from  any  pirate,  enemy,  or 
rebel ;  or 

consults,  combines,  or  confederates  Avith  or  attempts  to 
corrupt  any  commander,  master,  officer,  or  mariner  to  yield 
up  or  run  away  with  any  ship,  goods,  or  merchandise  or  turn 
pirate  or  go  over  to  pirates  ;  or 

1  8  Geo.  1,  c.  24,  s.  1  (last  part). 

2  11  &  12  Will.  3,  c.  7,  s.  8.  Section  9  enacts  in  substance  that 
accessories  to  piracy  shall  be  punished  as  pirates. 


THE    CRIMINAL    LAW    ■  81 


lays  violent  hands  on  his  commander  whereby  to  hinder 
him  from  fighting  in  defence  of  his  ship  and  goods  committed 
to  his  trust ;  or 

confines  his  master,  or  makes  or  endeavours  to  make  a 
revolt  in  the  ship  \}  even  if  the  object  of  such  revolt  is  to 
redress  real  grievances]. 

Article  114. 
trading  with  pirates  and  conspiring  with  them. 

-  Every  one  is  deemed  to  be  a  pirate  who  in  anywise  trades 
with  any  pirate  by  truck,  barter,  exchange,  or  in  any  other 
manner,  or  furnishes  any  pirate,  felon,  or  robber  upon  the 
seas  with  any  ammunition,  provision,  or  stores  of  any  kind  ;  or 

fits  out  any  ship  or  v^essel  knowingly  and  with  a  design 
to  trade  with,  or  supply,  or  correspond  with  any  pirate,  felon, 
or  robber  on  the  seas ;  or 

in  any  way  consults,  combines,  confederates,  or  corresponds 
with  any  pirate,  felon,  or  robber  on  the  seas,  knowing  him  to 
be  guilty  of  any  such  piracy,  felony,  or  robbery. 

Article  115. 

punishment  for  statutory  piracies. 

^  Every  one  who  commits  any  of  the  offences  defined  in 
Articles  110-114,  both  inclusive,  is  liable  upon  conviction  of 
~uch  act  to  penal  servitude  for  life. 

Article  116. 

not  fighting  pir.vies. 

*  Every  one  commits  a  misdemeanour,  and  must,  on  con- 
viction thereof,  be  imprisoned  for  six  months,  who,  being  a 

'  The  words  bracketed  give  tlie  effect  of  R.  v.  IIo.sIukjh,  1825,  1  Moody, 
^■1  ;  H.  V.  M'drffjor,  1844,  1  (\  k  K.  429.  As  to  "confines,"  see  /.'.  V. 
Jrmet,  1870,  11  Cox,  C.  C.  39.S. 

■•*  8  Geo.   1,  <;.  24,  s.   1  (first  part). 

•■'  7  Will  4  <t  1  Viol.  c.  88,  H.  ;{. 

<  8  Gpo.  1,  c.  24,  H.  f5.      Draft  Cmlo,  k.   I  ](». 


82  A    DIGEST   OF 


commander,  master,  or  any  officer  or  seaman  or  mariner  of 
any  merchant  ship  which  carries  guns  and  arms,  does  not 
when  attacked  by  any  pirate,  or  by  any  ship  on  which  any 
pirate  is  on  board,  fight  and  endeavour  to  defend  himself  and 
his  vessel  from  being  taken  by  such  pirate,  or  who  utters  any 
words  to  discourage  the  other  mariners  from  defending  the 
ship,  so  that  the  ship  falls  into  the  hands  of  such  pirate. 


Article  117. 
slave-trading  defined. 

^  Each  of  the  following  acts  and  every  contract  to  do  any 
one  of  them  is  an  act  of  slave-trading : — 

(a.)  To  deal  or  trade  in,  purchase,  sell,  barter,  or  transfer 
slaves  or  persons  intended  to  be  dealt  with  as  slaves. 

(6.)  To  carry  away  or  remove  slaves  or  other  persons  as  or 
in  order  to  their  being  dealt  with  as  slaves. 

(c.)  To  import  or  bring  into  any  place  whatsoever  slaves 
or  other  persons  as  or  in  order  to  their  being  dealt  with  as 
slaves. 

(d.)  To  ship,  tranship,  embark,  receive,  detain,  or  confine 
on  board  any  "^  vessel  slaves  or  other  persons — 

for  the  purpose  of  their  being  carried  away  or  removed  as 
or  in  order  to  their  being  dealt  with  as  slaves ;  or 

for  the  purpose  of  their  being  imported  into  any  place 
whatever  as  or  in  order  to  their  being  dealt  with  as  slaves. 

(e.)  To  fit  out,  man,  navigate,  equip,  despatch,  use,  employ, 
let,  or  take  to  freight,  or  on  hire,  any  -vessel,  in  order  to  do 
any  act  of  slave-trading  before  mentioned. 

(/.)  To  lend  or  advance,  or  become  security  for  the  loan 
or  advance  of  money,  goods  or  effects,  employed  or  to  be 
employed  in  any  act  of  slave-trading  before  mentioned. 

(g.)  To  become  guarantee  or  security  for  agents  employed 

'  5  Geo.  4,  c.  1 13,  s.  2.  The  language  of  this  Act  is  very  elaborate,  and 
I  have  not  noticed  every  deviation  from  it.  I  believe  that  this  and  the 
next  Article  give  its  effect  quite  correctly,  though  in  a  very  different  shape. 
For  the  history  of  the  Acts,  see  3  Hist.  Cr.  Law,  255-6. 

?  "Ship,  vessel,  or  boat," 


THE   CRIMINAL   LAW  83 

or  to  be  employed  in  any  act  of  slave-trading  before  men- 
tioned. 

(/<.)  To  engage  in  any  other  manner  in  any  act  of  slave- 
trading  before  mentioned,  directly  or  indirectly,  as  a  partner, 
agent,  or  otherwise. 

(i.)  To  ship,  tranship,  lade,  receive,  or  put  on  board  of  any 
^  vessel  money,  goods,  or  effects,  to  be  employed  in  any  act  of 
slave-trading  before  mentioned. 

(/)  To  take  the  charge  or  command  of,  or  to  navigate,  or 
enter  and  embark  on  board  any  ^  vessel  in  -  any  capacity, 
knowing  that  such  ^  vessel  is  employed  in  any  act  of  slave- 
trading  before  mentioned,  or  is  intended  to  be  so  employed 
upon  the  voyage  or  upon  the  occasion  in  Avhich  the  embarka- 
tion takes  place. 

(^'.)  To  insure  slaves  or  property  employed  or  intended  to 
be  employed  in  slave-trading. 

Article  118. 
piratical  slave-trading. 

^  Every  subject  of  His  Majesty,  and  ever}'  person  resident 
or  being  in  any  of  His  Majesty's  dominions,^  commits  piracy, 
felony,  and  robbery,  and  is  liable,  upon  conviction  thereof, 
to  penal  servitude  for  life  who  upon  the  high  seas,  or  in  any 
place  where  the  admiral  has  jurisdiction,  knowingly  and 
wilfully  does  or  assists  in  doing  any  of  the  following  things, 
that  is  to  say  : 

(fi.)  Who  carries  away,  convoys,  or  removes  any  person  as  a 
slave  ;  dv 

for  ihf  pmpD.sc  of  his  Ijciiig  impoilL'd  or  brought  as  a 
slave  into  any  ''place  whatsoever  ;  or 

'   "  Ship,  vcHHcl,  or  hoat." 

'■*  "  Ah  ca|jtaiii,  iiiuHter,  male,  potty  ollicer,  Hiirgcoii,  Hiipcit-arj^o,  m^aiiian, 
marine,  or  servant,  or  in  any  f)ther  (-ajiatily." 

••  5  CJeo.  4,  c.  113,  h.  9  (redrawn).  The  puniHlimcnt  in  tlie  text  in  Huh- 
iititute<l  for  the  puni«hment  of  death  l)y  1  Viet.  c.  Ml,  h.  I  (now  rc-peaied), 
and  the  jiennl  servitude  AetH. 

*  "  I)ominionH,  forln,  HottlementH,  faetorii-H,  or  (erritorieH  now  or  here- 
after l^don^ing  to  HiH  MajcHty,  or  Ixin^^  in  lli«  .Majewty'M  oecupalion  or 
[KMMeitMion." 

''  "Island,  colon}',  efjiintr},  tciriloiy,  or  plaee." 

(J  2 


84  A    DIGEST   OF 


for  the  purpose  of  his  being  used,  transferred,  sold,  or  dealt 
with  as  a  slave  ;  or 

(b.)  Who  ships,  embarks,  receives,  detains,  or  confines  any 
person  on  board  any  vessel  for  the  purpose  of  his  being 
carried  away,  conveyed,  or  removed  as  a  slave ;  or 

for  the  purpose  of  his  being  imported  or  brought  as  a  slave 
into  any  ^  place  whatsoever  ;  or 

for  the  purpose  of  his  being  sold,  transferred,  used,  or  dealt 
with  as  a  slave. 

Article  119. 
punishment  of  slave-trading. 

^ Every  one  Rowing  allegiance  to  His  Majesty]  commits 
felony,  and  is  liable  upon  conviction  thereof  to  be  kept  in 
penal  servitude  for  fourteen  years,  or  to  be  imprisoned  with 
hard  labour  for  a  term  of  five  years,  who  [^in  any  part  of 
the  world]  does  any  of  the  acts  of  slave-trading  specified 
in  Article  117,  clauses  (a.),  (b.),  (c),  (d.),  (e.) ;  or 

knoAvingly  and  wilfully  does  any  of  the  acts  of  slave- 
trading  specified  in  Article  117,  clauses  (/.),  (g.),  (A.),  (i.), 
or  (/•.). 

Article  120. 
serving  on  a  slave-ship,  felony. 

*  Every  one  commits  the  same  offence,  and  is  liable  to  the 
same  punishment  as  is  specified  in  the  last  Article,  who  takes 
charge  or  command  [of],  or  navigates,  or  embarks  on  board 
any  vessel  as  captain,  master,  mate,  surgeon,  or  supercargo,  or 
contracts  to  do  so,  knowing  that  such  vessel  is  actually 
employed,  or  is  on  that  voyage  or  occasion  intended  to  be 
employed,  in  any  act  of  slave-trading. 

1  "Island,  colony,  country,  territorj-,  or  place." 

2  5  Geo.  4,  c.  ll.S,  s.  10  (redrawn). 

3  These  M'ords  are  inserted  to  give  the  effect  of  B.  v.  Zulueta,  1843, 
1  C.  &  K.  21,5,  226-7.  See,  however,  Santoi^  v.  lUidge,  1860,  8  C.  B. 
(N.S. )  861.  in  which  the  Court  of  Exchequer  Chamber  was  equally  divided 
upon  a  very  similar,  though  not  identical,  point. 

*  5  Geo."  4,  c.  113,  s.  10. 


THE    CRIMINAL    LAW  85 

Article  121. 

serving  ox  a  slave-ship,  misdemeanour. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  to  two 
A-ears  imprisonment,  who,  with  the  knowledge  mentioned  in 
the  last  Article,  does  an}'  of  the  things  mentioned  in  that 
Article,  as  petty  officer,  seaman,  marine,  or  servant,  or  in 
any  other  capacity  not  specifically  mentioned  therein. 

Article  122. 
kidnapping  pacific  islanders. 

-Every  one  commits  felony  and  is  liable  upon  conviction 
thereof  to  the  highest  punishment  other  than  capital  punish- 
ment, or  to  any  less  punishment  awarded  to  any  felony  by 
the  law  of  the  colony  in  which  he  is  tried,  who 

(i.)  decoys  a  native  of  any  of  the  islands  in  the  Pacific 
Ocean,  not  being  in  His  Majesty's  dominions  nor  within  the 
jurisdiction  of  any  civilised  power,  for  the  purpose  of 
importing  or  removing  such  native  into  any  island  or  place 
other  than  that  in  which  he  was  at  the  time  of  the  com- 
mission of  such  offence  ;  or  carries  away,  confines,  or  detains 
any  such  native  fur  the  purpose  aforesaid  without  his 
con.sent,  proof  of  which  consent  lies  on  the  party  accused  :  or 

(ii.)  ships,  embarks,  receives,  detains,  or  confines,  or  assists 

'  5  Geo.  4,  c.  113,  s.  11. 

-  35  &  36  Vict.  c.  19,  ss.  9  and  10,  and  see  preamble,  for  a  definition  of 
Pacific  Islanders.  Sect.  9  provides  that  offenders  may  be  tried  and  pun- 
ished for  such  felony  in  any  supreme  Couit  of  Justice  in  any  of  tlie 
"  Australian  colonies,"  i.e.  (see  s.  2)  New  Soutli  Wales,  New  Zealand, 
Queensland,  South  Australia,  Tasmania,  Victoria,  and  Western  Australia, 
io  these  Fiji  was  ad<led  by  38  k  39  Vict.  c.  /il,  whicii  also  empowere<l 
Her  Majesty  to  erect  a  court  at  ]""iji  for  the  trial  of  offences  committed  in 
llie  Pacific  Ocean,  or  the  islands  thereof.  1'he  Acts  do  not  seem  to  eon- 
temjilate  the  trial  in  Kngland  of  such  olfences.  There  are  however  no 
words  to  exclude  the  jurisdiction  of  the  Knglish  (Jourts,  though  the 
provisions  as  to  punishment  ilepend  uj)on  the  laws  of  tlie  colonies.  It  may 
l»e  that  if  such  an  offence  were  tried  in  Kngland,  7  &  H  (Jeo.  4,  c.  'J8,  hm. 
H  and  9,  would  aj)ply  (see  Article  18,  sujnu).  See  as  to  this  subject,  2 
lli-it.  O.   Law,  p.    .">«"  9. 


86  A    DIGEST   OF 


in  shipping,  embarking,  receiving,  detaining,  or  confining 
for  the  purpose  aforesaid,  a  native  of  any  of  the  aforesaid 
islands,  on  board  any  vessel  either  on  the  high  seas  or 
elsewhere,  without  the  consent  of  such  native,  proof  of  which 
consent  lies  on  the  party  accused  :  or 

(iii.)  contracts  for  the  shipping,  embarking,  receiving, 
detaining,  or  confining  on  board  any  vessel  for  the  purpose 
aforesaid  any  such  native  without  his  consent,  proof  of 
which  consent  lies  on  the  party  accused  : 

(iv.)  fits  out,  mans,  navigates,  equips,  uses,  employs,  lets 
or  takes  on  freight  or  hire  any  vessel,  or  commands  or 
serves  or  is  on  board  any  such  vessel,  with  intent  to  commit, 
or  that  any  one  on  board  such  vessel  should  commit,  any  of 
the  offences  above  enumerated  :  or 

(v.)  ships,  lades,  receives,  or  puts  on  board,  or  contracts 
for  the  shipping,  lading,  receiving,  or  putting  on  board  of 
any  vessel  money,  goods,  or  other  articles  with  the  intent 
that  they  should  be  employed,  or  knowing  that  they  will  be 
employed,  in  the  commission  of  any  of  the  offences  above 
enumerated. 

Any  person  who  aids,  abets,  counsels,  or  procures  the 
commission  of  any  of  the  said  offences  is  liable  to  be  tried 
and  punished  as  a  principal  offender. 


THE    C RIM IX A L    LAW 


PART   III 


ABUSES  AND  OBSTRUCTIONS  OF  PUBLIC 
AUTHORITY  ^ 

CHAP.   XI. — Abuses  of  ArTHOR-  |   CHAP.  XIII. — Bribery  and  Cor- 

iTY — Oppression — Extortion —  '       ruption — Offences    .^t    Elec- 
— Fraud — Neglect  of   Duty —  tions — S.vle  of  Offices. 

Offences     by     Soldiers,    Post      CHAP.  XIV. — Misleading  Justice 

Office  Officials,  Sheriffs,  Cor-  j       — Perjury — False  Swearing — 

oners,  and  Officers  of  Inland  |       Subornation  —  Maintenance  — 
Rentinue — Refusal  to  act.  Intimidating  Witness. 

CHAP.  XV.— Escape  —  Rescue  — 

CHAP.      XII. — Disobedience     to  |       Prison  Breach — Misprisions — 

lawful  Orders.  I       Compounding  Offences. 


CHAPTER  XI. 

ABUSES  OF  AUTHORITY,  OPPRESSION,  EXTORTION,  FRAUD, 
NEGLECT  OF  DUTY,  OFFENCES  BY  SOLDIERS,  POST 
OFFICE  OFFICIALS,  SHERIFFS,  CORONERS,  AND 
OFFICERS  OF  INLAND  REVENUE:  REFUSAL   TO  ACT 

Article  123. 
"  public  officer  "  defined. 
-The  exprc's.sion  "public  officer,"  in  this  chapter,  means  a 
person  invested  with  authority  to  execute  any  ])ublic  duty, 
and  legally  bound  to  do  .so,  but  does  not  inrludt'  any  nu-niber 
(jf  either  House  of  Parliament  as  such,  or  any  ecclesiastical, 
naval,  or  military  officer  acting  in  the  discharge  of  duties  for 
the  due  discharge  of  which  he  can  be  made  accountable  only 
by  an  ecclesiastical,  naval  or  military  court. 

'  It  haH  not  been  thouglit  necessary  to  include  in  tliis  I'arl  a  variety 
of  offences  of  a  very  Hpecial  kiml,  sucli  as  falsification  of  medical  certificates 
and  registei-B  unrler  \r,  &  Hi  Vict.  c.  50,  as.  ir>,  IG  ;  '21  &  22  Vict.  c.  90, 
H.  :\H;  .Tl  k  'A2  Vict.  c.  121,  s.  14;  ofVenccs  under  the  Dentists  Act, 
IM78,  41  k  4'J  Vict.  c.  33,  s.  .'{4  ;  oHenccs  as  to  testing  chain  caMes  under 
21  &  2H  Vict.  c.  27,  B.  12,  or  oflences  under  the  (,'<irn  I'vctnins  Ait,  ir» 
A  40  Vict.  c.  37,  H.  12. 

■i  See  7  }U\).  C.  L.  C.  ch.  iv.  p.  ITiS,  and  .rf.  Ft  R<|).  C.  L.  (".  p.  40.      It 
would  l»e  foreign  to  the  jiuriMme  of  this  work   to  iliscuss  the  <|tn-stion  of 
the  limits  of  the  jurisdiction  of  the  (,'oiuts  of  Cumnion  Law,  and  KcilcMi 
aMtir:al  and  Military  {luurlH. 


88  A    DIGEST   OF 


Article  124. 

EXTORTION    AND    olM'ltESSlON    liV    I'UBLIC   OFFICERS. 

^  Every  public  officer  commits  a  misdemeanour  who,  in  the 
exercise  or  under  colour  of  exercising  the  duties  of  his  office, 
does  any  legal  act,  or  abuses  any  discretionary  power  with 
which  he  is  invested  by  law  from  an  improper  motive,  the 
existence  of  which  motive  may  be  inferred  either  from  the 
nature  of  the  act,  or  from  the  circumstances  of  the  case. 
But  an  illegal  exercise  of  authority,  caused  by  a  mistake  as 
to  the  law,  made  in  good  faith,  is  not  a  misdemeanour  within 
this  Article. 

If  the  illegal  act  consists  in  taking  under  colour  of  office 
from  any  person  any  money  or  valuable  thing  which  is  not 
due  from  him  at  the  time  when  it  is  taken,  the  offence  is 
called  "  extortion." 

If  it  consists  in  inflicting  upon  any  person  any  bodily 
harm,  imprisonment  or  other  injury,  not  being  extortion, 
the  offence  is  called  "  oppression." 


Illustrations. 

(1.)  -The  Lord  Chief  Justice  of  England  passes  upon  B  and 
C  sentences  for  similar  offences  so  disproportionate  as  to  show 
partiality.      He  commits  oppression. 

(2.)  "^  The  Governor-General  of  India   wrongfully  compels  a 


1  R.  V.  Wyat,  1703,  1  Salk.  .380  ;  li.  v.  Bemhrid,je,  178.3,  3  Doug.  327, 
and  22  St.  Tr.  1-159  ;  Bacon,  Abridgment,  tit.  "  Office  and  Officer,"  N.  ; 
a.  V.  Borron,  1 820,  3  B.  &  Aid.  432  ;  and  see  cases  referi'ed  to  in  the 
Illustrations. 

-  4th  Article  of  impeachment  against  .Scroggs,  C.J.,  1680,  8  St.  Tr.  199. 

3  This  was  tlie  gist  of  the  Cheyte  Singh  charge  in  the  Lmpeachment  of 
Warren  Hastings.  It  is  remarkable  that  neither  in  Debrett's  History  of 
the  Trial,  nor  in  Mr.  Mill's  History  of  India,  nor  in  Lord  ;Macaulay's 
elaborate  Essay  on  Warren  Hastings,  nor  in  Marshman's  History  of  India, 
are  the  charges  against  Hastings  distinctly  stated.  It  seems  to  a  lawyer 
natural  to  give  at  least  an  abstract  of  the  indictment  in  order  to  render  an 
account  of  a  trial  intelligible,  but  historians  are  apt  to  take  a  different 
view.  Lord  Macaulay  in  particular  is  so  much  interested  in  Burke's 
rhetoric  that  he  omits  to  say  what  it  was  all  about.     In  Mr.  Massey's 


THE    CRIMINAL    LAW  89 

native  prince  to  pay  sums  of  money  to  the  Indian  Government. 
He  commits  extortion. 

(3.)  ^  A  and  B,  justices  of  the  peace,  refuse  licences  to  the  keepers 
of  public  houses,  because  they  refuse  to  vote  as  the  justices  wish. 
A  and  B  commit  oppression. 

(4.)  -  A,  a  justice  of  the  peace,  sends  his  servant  to  the  house 
of  correction  for  being  saucy  and  giving  too  much  corn  to  his  horses. 
A  commits  oppression. 

(5.)"^  A,  a  justice,  acting  as  such,  orders  B  to  be  whipped,  with- 
out such  proof  or  information  as  the  law  requii'es.  A  commits 
oppression. 

(G)  *  A,  a  constable,  having  B  in  custody  on  a  warrant  for  an 
assault,  obtains  money  from  B  upon  colour  and  pretence  that  A 
will  procure  the  warrant  to  be  discharged.      A  commits  extortion. 

(7.)  "  A,  a  justice,  commits  B,  a  pauper,  to  prison  for  refusing 
t(^  answer  questions  which  A  had  a  right  to  put  as  to  B's  settle- 
ment, believing  in  good  faith  that  A  had  a  legal  right  to  commit 
B.     A  does  not  commit  a  misdemeanour. 

(8.)  ^  A,  a  justice,  illegally  refuses  to  accept  bail  for  a  person 
entitled  to  be  bailed,  under  an  opinion,  hastily  adopted  in  a  crisis 
of  real  danger,  that  it  was  right  to  do  so.  A  does  not  commit  a 
misdemeanour. 


Article  125. 

illegally  imprisoning  subjects  beyond  the  seas, 

^Every  one  commits  a  misdemeanour  who  knowingly  frames, 
contrives,  writes,  seals,  or  countersigns  any  warrant  for  the 
commitment,  detainer,  or  transportation  of  any  subject  of  this 


History  of  George  III.,  vol.  iii.  jj.  .S.37,  Burke's  suminar}'  of  the  ten 
charges  which  he  opeiicil  is  given,  but  Mr.  Massey  observes  tlial  only  one 
of  the  ten  was  <li.slinct  and  substantive.  The  transactions  with  Cheyte 
Singh  are  (le.scril)e(I  in  .Mills  British  hulia,  iv.  321,  &c.,  in  Lord  Macaulay's 
Ivs.says,  p.  620  (ed.  of   18.10),  and  in  Marslunan's  History,  i.  424. 

'  /.'.  v.   ir»7/.ttm>,  1702,  :i  Bun-.  1317. 

■-i  /(•.  v.  Oke;/,  1722,  H  Mfxl.  4G.  According  to  li.  v.  Morfit,  1816,  R. 
<^  R.  307,  decide<l  long  afterwards,  A  might  have  committed  his  servant 
■  >r  theft,  and  now,  by  statute,  for  misdemeanour.      See  Art.  368. 

'  See  jxecedent  of  indictment,  2  (Jhit.  Crim.  Law,  236. 

*   Precedent  of  indictment,  2  (Jhit.  Ci  im.   Law,  2!(2. 

'  J{.  V.  Jarl-Jioii,  1787,  1  T.  R.  (..''.3. 

»  If.  V.  /Jiulye.r,  1843,  4  Q.  B.  46H. 

^  31  Car.  2,  c.  2,  h.  11,  the  Hal)eas  ('(trpus  Act.  Tln'  j)cimlty  is  |)i;c- 
munire,  as  explained  by  Coke,  1   Inst.    130  n.      7tli  l\e|).  ( '.   L.  ( '.  |i.  37. 


90  A    DIGEST   OF 


realm  resident  in  England,  Wales,  or  Berwick,  as  a  prisoner 
in  or  to  Scotland,  Ireland,  Jersey,  Guernsey,  or  any  other 
place  beyond  the  sea,  within  or  without  the  King's  dominions, 
or  who  so  commits,  detains,  imprisons,  or  transports  any 
person. 

Whoever  commits  any  such  misdemeanour  is  put  out  of  the 
King's  protection.  His  lands,  tenements,  goods,  and  chattels 
are  forfeited  to  the  King,  and  he  is  to  be  imprisoned  for  life 
(or  perhaps  at  the  King's  pleasure). 

Article  126. 
frauds   and   breaches  of  trust   by  officers, 

1  Every  public  officer  commits  a  misdemeanour  who,  in  the 
discharge  of  the  duties  of  his  office,  commits  any  fraud  or 
breach  of  trust  affecting  the  public,  whether  such  fraud  or 
breach  of  trust  would  have  been  criminal  or  not  if  committed 
against  a  private  person. 

Illustrations. 

(1.)  "A,  an  accountant  in  the  office  of  the  Paymaster-General, 
fraudulently  omits  to  make  certain  entries  in  his  accounts, 
whereby  he  enables  the  cashier  to  retain  large  sums  of  money  in 
his  own  possession,  and  to  appropriate  the  interest  on  such  sums 
to  himself  after  the  time  when  they  ought  to  liave  been  paid 
to  the  Crown.      A  commits  a  misdemeanour. 

(2.)  "^  A,  a  commissary  general  of  stores  in  the  West  Indies, 
makes  contracts  with  B  to  supply  stores,  on  the  condition  that  B 
should  divide  the  profits  with  A.      A  commits  a  misdemeanour. 

Article  127. 
neglect  of  official  duty. 

*  Every  public  officer  commits  a  misdemeanour  who  wilfully 
neglects  to  perform  any  duty  which  he  is  bound  either  by 

'  See  cases  in  Illustrations. 

2  a.  V.  Bemhridge,  1783,  3  Doug.  327  ;  22  St.  Tr.  1-160.  This  would 
now  be  an  offence  in  tlie  case  of  a  private  person  under  38  &  39  Vict.  c. 
24,  s.  12.     See^acs^,  Art.  381. 

a  R.  V.   Valentine  Jones,  1809,  31  St.  Tr.  251. 

*  R.  V.  Wyat,  1702,  1  Salk.  381  ;  R.  v.  Bemhridge,  ante  ;  Comyn's 
Digest,  tit.  Indictment,  D.  ;  4  Steph.  Com.  272. 


THE    CRIMINAL   LAW  91 

common  law  or  by  statute  to  perform,  provided  that  the 
discharge  of  such  duty  is  not  attended  with  greater,  danger 
than  a  man  of  ordinary  firmness  and  activity  ma}^  be  expected 
to  encounter. 

Illustrations. 

(1.)  ^  A,  the  mayor  of  B,  neglects  to  perform  various  acts 
which  it  was  in  his  power  to  do,  and  which  a  man  of  ordinary 
prudence,  firmness,  and  activity  miglit  have  been  expected  to  do, 
in  order  to  suppress  riots  in  B.     A  is  guilty  of  a  misdemeanour. 

(2.)  -  A,  the  Lord  Mayor  of  London,  refrains  from  making 
the  proclamation  in  the  Riot  Act,  and  from  ordering  soldiers  to 
disperse  a  mob,  because  he  is  afraid  to  do  so,  in  circumstances  in 
which  a  man  of  ordinary  courage  would  not  have  been  afraid. 
A  commits  a  misdemeanour. 

(3.)  ^  A,  a  sheriff,  refuses  to  execute  a  criminal  condenmed  to 
death.      A  commits  a  misdemeanour. 

(4.)  ■*  A,  a  coroner,  refuses  to  take  an  inquest  on  a  body,  after 
notice  that  it  is  hnng  dead  in  his  juiisdiction.  A  connnits  a 
misdemeanour. 

(5.)  '^  A,  a  constable,  wilfully  refuses  to  arrest  a  person  who 
commits  a  felony  in  his  presence.      A  commits  a  misdemeanour. 

(6.)^  A,  a  clergyman  of  the  Church  of  England,  refuses  to 
solemnise  marriage  between  persons  who  might  lawfully  be 
married  and  who  tender  themselves  for  that  purpose.  He 
commits  a  misdemeanour. 


'  Jl.  V.  Pinney,  1832,  5  C.  &  P.  254,  and  S  B.  &  Ad.  947,  3  St.  Tr.  N.  S. 
1.  This  is  the  case  of  the  Bristol  liots.  Mr.  Pinney  was,  in  fact, 
acquitted  ;  but  the  case  involves  the  principle  of  the  Illusti'ation. 

-  J{.  V.  Kennel,  1781  (Lord  Mayor  in  1780),  printed  in  ">  C.  &  P.  282, 
as  a  note  to  Ji.  v.  Pinney. 

3  R.  V.  Antrobivf,  1835,  2  A.  &  E.  788. 

■•  2  Hale,  P.  C.  57  ;  and  .see  precedent,  of  indictnienl,  2  Cliit.  ("rim. 
Law,  255. 

'  Hawk.     P.  C.  p.  129;  cf.  p.   115. 

"  li.  V.  James,  1850,  2  Den.  I.  Tlic  conviction  in  tiiis  case  was 
quashed  on  the  narrow  ground  tliat  tiie  parties  did  not  sulliciently  tender 
themselves  for  marriage.  'Die  objection  that  the  oHence  was  only  an 
ecclesiastical  one  was  taken,  hut  no  judgment  was  delivered  <»n  it.  A 
refusal  to  bury  would  jiroltalily  stand  <m  tiie  same  footing.  By  1  Kdw. 
6,  c.  1,  it  is  enacted  tiiat  a  minister  "  sluill  not  without  lawful  cause 
rleny  "  (the  Sacrament)  "  to  any  person  tiiat  will  devoutly  and  liundily 
desire  it."  An  indictment  for  such  a  denial  would  ]n-  in<M)ngruouH  and 
indecent,  but  it  is  ditlicult  to  find  any  dctinilc;  legal  ground  for  saying  (hat 
it  would  not  lie.      See  ./m Linn  v.   Cuol:,  IH'JV>,  \..   H.   I    P.   D.  SO. 


92  A    DIGEST   OF 


Article  128. 
offences  by  soldieus. 

^  Every  officer  who  (]u;irters  or  causes  to  be  billeted  any 
officer,  soldier,  or  horse  upon  any  person  otherwise  than  is 
allowed  by  the  Army  Act  1881,  is  guilty  of  a  misdemeanour. 

^  Every  person  who  negotiates,  acts  as  agent  for,  or  other- 
wise aids  or  connives  at,  the  sale  of  a  commission,  payment  for 
promotion,  retirement,  or  employment,  or  an  unlawful  ex- 
change, is  liable  on  conviction  on  indictment  to  a  fine  of 
£100,  or  imprisonment  for  six  months. 

Article  129. 

offences  by  post-office  officials. 

^  Every  person  having  official  duties  connected  with  the 
Post  Office  or  acting  on  behalf  of  the  Postmaster-General  is 
guilty  of  a  misdemeanour,  who  contrary  to  his  duty  discloses, 
or  in  any  way  makes  known,  or  intercepts,  the  contents,  or 
any  part  of  the  contents,  of  any  telegraphic  message  or  any 
message  intrusted  to  the  Postmaster-General  for  the 
purposes  of  transmission. 

*  Every  person  in  the  employment  of  a  ^  telegraph  company 
is  guilty  of  a  misdemeanour  and  is  liable  to  imprisonment 
with  hard  labour  or  to  a  fine  of  £200  who  improperly 
divulges  to  any  person  the  purport  of  any  ^  telegram. 

1  44  &  45  Vict.  c.  58,  s.  111. 

2  Ibid.  s.  1.55. 

3  32  &  33  Vict.  c.  73,  s.  20. 

*  47  &  48  Vict.  c.  76,  s.  11.  This  offence  is  also  punishable  summarilj'  ; 
see  Oke's  S\'nopsis,  p.  632. 

°  "  An}-  company,  corporation,  or  persons  carrying  on  the  business  of 
sending  telegrams  for  the  public  under  whatever  authority  or  in  whatever 
manner  such  companj-,  corporation,  or  persons  may  act  or  be  constituted. " 

^  "  A  written  or  printed  message  or  communication,  sent  to  or  delivered 
at  a  post-office,  or  the  office  of  a  telegraph  company,  for  transmission  by 
telegraph,  or  delivered  by  the  Post  Office  or  a  telegraph  company  as  a 
message  or  communication  transmitted  by  telegraph." 


THE    CRIMINAL    LAW  93 

Article  130. 

offences  by  a  sheriff,  etc. 

^Any  person  being  a  sheriff,  under-sheriff,  baliff  or  officer 
of  a  sheriff,  whether  within  a  franchise  or  without  is  guilty  of 
a  misdemeanour  and  liable  to  imprisonment  not  exceeding 
one  year,  and  to  pay  a  fine  or  if  he  has  not  wherewith  to  pay, 
to  impi'isonment  for  not  exceeding  three  years,  who 
(a.)  refuses  to  arrest  any  felon  in  his  bailiwick  ;  or 
(/).)  is  guilty  of  an  offence  against  or  breach  of  the 
provisions  of  the  Sheriffs  Act  1887. 

Article  131. 

offences   by   a   coroner. 

-  A  coroner  is  guilty  of  misdemeanour,  and  in  addition  to 
any  other  punishment  may  be  removed  from  his  office,  unless 
it  is  annexed  to  any  other  office,  who  is  guilty  of  extortion, 
or  of  corruption,  or  of  wilful  neglect,  or  ^  misbehaviour  in  the 
discharge  of  his  duty. 

Article  132. 
offences  by  inland  revenue  officers,  etc. 

^  Any  person  is  guilty  of  a  misdemeanour,  and  on  conviction 
forfeits  his  office  or  employment  and  is  incapable  of  ever 
hoUling  any  office  or  employment  in  or  relating  to  the 
Excise,  who 

being  a  collector,  or  any  person  appointed  to  be  an 
officer  and  employed  in  relation  to  duties  of  excise,  deals  or 

'  r-)()  k  ;■)!  Vict.  c.  55,  8.  29,  (1)  and  sec  Art.  Escape,  post. 

2  .'50  &  51  Vict.  c.  71,  8.  8. 

'  A  coroner  who  by  himHcIf  or  liis  partner  acts  for  or  against  any  person 
trieil  f»n  inquisition  or  indictment  for  an  offence  for  wliit'h  the  jx-rson  is 
charged  on  an  in<|uiHition  taken  liefore  liini,  or  a  coroner  who  does  not 
comf)]y  with  a  written  rcfjuisition  of  Ids  jury  tf)  sununon  a  medical 
practitioner  as  a  witness  or  to  direc^t  a  post-mortem  examination  to  l)e  takcui, 
is  (guilty  of  mishehaviour  in  diHcharge  of  ids  duty  ;  Iliid.  ss.   10,  21  (W). 

«  Tui  k  -A  Vict.  c.  21,  H.  7. 


94  A    DIGEST   OF 


trades  in  any  goods  subject  to  any  such  duty,  or  carries  on 
or  is  concerned  in  any  trade  or  business  subject  to  any  law 
of  excise. 

^  Any  person  is  guilty  of  a  misdemeanour,  and  on  con- 
viction is  incapable  of  ever  holding  any  office  under  the 
Crown,  who, 

being  a  collector  or  other  person  intrusted  with  the 
collection,  receipt,  or  custody  of  inland  revenue,  neglects  or 
omits  to  keep  and  render  accounts  in  the  prescribed  manner 
and  form  of  all  sums  of  money  collected  or  received  by  him 
or  intrusted  to  his  care. 


Article  133. 

refusal  to  serve  an  office. 

^  Every  one  commits  a  misdemeanour  who  unlawfully 
refuses  or  omits  to  take  upon  himself  and  serve  any  public 
office  which  he  is  by  law  required  to  accept  if  duly  appointed  ; 
but  this  Article  does  not  extend  to  cases  in  which  any  other 
penalty  is  imposed  by  law  for  such  refusal  or  neglect,  or  to 
any  case  in  which  by  law  or  by  custom  any  person  is 
permitted  to  make  any  composition  in  place  of  serving  any 
office. 

Illusiratiou. 

A  person  may  be  indicted  for  refusing  to  exercise  the  office  of 
overseer  of  the  poor  or  parish  constable. 


1  53  &  54  Vict.  c.  21,  s.  14. 

2  B.  V.  Bower,  1823,  1  B.  &  C.  585  ;  and  see  5th   Report,  C.  L.  C.  41, 
where  many  authorities  are  cited.     Also  I  Russ.  Cr.  307-308. 


THE    CRIMIXxiL    LAW  95 


CHAPTER  XII 
disobedience  to  la  wful  orders 

Article  134. 

disobedience  to  a  statute. 

^  Every  one  commits  a  misdemeanoar  who  wilfully  disobeys 
any  statute  of  the  realm  by  doing  any  act  which  it  forbids, 
or  by  omitting  to  do  any  act  which  it  requires  to  be  done, 
and  which  concerns  the  public  or  an}'  part  of  the  public, 
unless  it  appears  from  the  statute  that  it  was  the  intention 
of  the  Legislature  to  provide  some  other  penalty  for  such 
disobedience. 

Article  135. 

disobedience  to  lawful  orders  of  court,  etc. 

-  Every  one  commits  a  misdemeanour  who  disobeys  any 
order,  warrant,  or  command  duly  made,  issued,  or  given  by 
any,  court,  officer,  or  person  acting  in  any  public  capacity  and 
duly  authorised  in  that  behalf,  unless  any  other  penalty  or 
mode  of  proceeding  is  expressly  prescribed  in  respect  of  such 
disobedience. 

Illustrations. 

(1.)"'  A  refuses  to  assist  a  constable  in  the  e.vecution  of  bis 
duty  when  lawfully  called  upon  by  the  constable  to  do  so.  A 
commits  a  misdemeanour. 


I  A'.  V.  \Vri<ihi,  1758,  1  Burr.  643;  /.'.  v.  Ilnnis,  IT'.M,  1  'I'.  It.  -l^)'!  \ 
.'.th  K.-jK-it,  (,'.  L.  ('.  4:}  ;  2  Hiiwk.  P.  C.  'IM).      Draft  dAv,  h.   114. 

-  .")tli  l\i\><,n,  ('.  L.  (J.  4.3  ;  JoueMH  Cane.,  1840,2  Moo.  171  ;  A',  v.  I>nl<, 
IK.-)2,  1).  &  P.  rn  ;  Draft  Co^le,  h.  1  LI 

'  R.  V.  Shr/ork,  lH(i(i,  1  C.  C.  H.  20,  iiikI  A",  v.  /innni,  1841, 
(fir.    iin<l    M.  .314.      In  the  latter  cu«c  it  wji«  laid  down  that  in  order  to 


96  A    DIGEST   OF 


{'2.)  ^  A  refuses  to  pay  money  for  the  support  of  his  bastard 
child  which  he  has  been  ordered  to  pay  l)y  the  Quarter  Sessions. 
A  commits  a  misdemeanour. 


constitute  this  ollence  it  is  necessary  that  the  constal)le  sliouhl  see  a 
breach  of  the  peace  committed,  that  there  siiould  be  a  reasonable  necessity 
for  his  calling  upon  other  persons  for  assistance,  and  that  the  pei-son 
called  on  should  be  suffering  from  no  pliysical  impossibility  to  obe}',  and 
should  have  no  lawful  excuse  for  disobedience  :  see  too  N.  v.  Phelpn,  1841, 
Car.  &  M.  180. 

1  B.  V.  Fen-all,  18.10,  2  Den.  ill.  In  this  case  Pollock,  C.B.,  asked 
how  it  would  be  if  the  man  could  not  pay,  and  wiiethcr  a  refusal  to  pay 
a  fine  is  indictable.  The  answer  would  seem  to  be  that  it  is.  Imprison- 
ment on  sucli  an  indictment  woiild  only  be  a  roundabout  M'ay  of  doing 
what  is  commonly  done  in  cases  of  fine,  viz.  inflicting  an  alternative  term 
of  impiisonment.  Wiicther  a  man  is  sentenceil  to  be  fined  £100  and  to 
be  imprisoned  in  default  of  payment,  or  to  be  imprisoned  because  he  has 
not  obeyed  the  order  of  the  Court  to  pay  a  tine  of  £100,  is  rather  a 
matter  of    form  than  anything  else. 


THE   CRIMINAL   LAW  97 


CHAPTER  XIII 
bribery  axd  corrupt/ox— sale  of  offices 

Article  186. 
judicial  corruption. 

^  Every  one  who  gives  or  offers  to  any  person  holding  any 
judicial  office,  and  every  person  holding  any  judicial  office 
who  accepts  any  bribe,  commits  a  misdemeanour. 

Every  gift  or  payment  made  in  respect  of  or  in  relation  to 
any  business  having  been,  being,  or  about  to  be  transacted 
before  any  such  person  in  his  office  is  a  bribe,  whether  it  is 
given  in  order  to  influence  the  judicial  officer  in  something  to 
be  done,  or  to  reward  him  for  something  already  done,  and 
whether  the  thing  done  or  to  be  done  is  itself  proper  or 
improper. 

Article  137. 
corrrptiox  of  other  public  officers. 

-  Every  one  commits  a  misdemeanour  who  by  any  means 
endeavours  to  foi-ce,  persuade,  or  induce  any  public  officer 
not  being  a  judicial  officer  to  do  or  omit  to  do  any  act  which 
the  offender  knows  to  be  a  violation  of  such  officer's  official 
duty. 

'  3  Insl.  144-8  ;  1  Hawk.  V.  (J.  4I4-L5  ;  nlh  Rep.  C.  L.  C.  p.  '20-1. 
See,  loo,  Spedding'H  Life  of  Uacon,  vii.  209-7S.  The  crime  is  so  rare 
that  the  flefinilion  is  very  imperfect  and  more  or  less  conjectural.  Sec  .S 
Hist.  Cr.  I^iw,  "ioO-.T  ;  Draft  Code,  s.  111. 

-  ."jth  Rcj)ort,  C.  L.  C.  "  ofTcnccs  against  liic  Executive  Power"  art.  .'i.'!, 
p.  47.  Many  authorities  are  cited,  and  in  particular  tlic  chapters  of  tljo 
3r<l  Inst,  anil  Hawkins  referred  U)  in  the  last  note  ;  also  /?.  v.  y^aur/hnn, 
176!),  Burr.  2494,  sec  especially  2.")ni,  and  see/?,  v.  Lnura.-<tn\  IS'.K), 
16  Cox,  737. 


98  A    DIGEST   OF 


Article  138. 
corruption  of  pt'rlic  bodies. 

^  Every  one  is  guilty  of  a  niisdcmcanourand  is  liable  to  the 
penalties  mentioned  below,  who,  by  himself,  or  in  conjunction 
with  another  person — 

{a.)  corruptly  solicits  or  receives,  or  agrees  to  receive,  for 
himself  or  for  any  other  person,  any  -  reward  as  an  induce- 
ment to,  or  reward  for,  or  otherwise  on  account  of,  any  member, 
officer,  or  servant  of  a  ^public  body,  doing  or  forbearing  to  do 
anything  in  respect  of  any  matter  or  transaction  actual 
or  proposed  in  which  the  ^  public  body  is  concerned  ;  or 

(b.)  corruptly  gives,  promises,  or  offers  any  -  reward  to  any 
person,  whether  for  the  benefit  of  that  person  or  another 
person,  as  an  inducement  to,  or  reward  for,  or  otherwise  on 
account  of,  an}'  member,  officer,  or  servant  of  any  ^  public 
body,  doing  or  forbearing  to  do  anything  in  respect  of  any 
matter  or  transaction,  actual  or  proposed  in  which  the  ■*  public 
body  is  concerned. 

*  Such  person  is  liable 

(a.)  to  imprisonment  with  hard  labour  for  two  years,  or  a 
fine  not  exceeding  £500,  or  to  both  fine  and  imprisonment ; 
and, 

(b.)  to  be  ordered  to  pay  to  such  body  and  in  such  manner 
as  the  Court  directs  the  amount  or  value  of  any  ^reward 
received  by  him  or  any  part  thereof ;  and, 

(c.)  to  be  adjudged  incapable  of  being  elected  or  appointed 
to  any  ^  public  office  for  seven  years  from,  and  to  forfeit  any 
such  office  held  by  him  at,  the  date  of  the  conviction ; 
and 

(d.)  on  a  second  conviction  for  a  like  offence,  in  addition  to 
the  foregoing  penalties  to  be  adjudged  to  be  for  ever  incapable 
of  holding  any  •'  public  office  and  to  be  incapable  for  seven 

>  52  &  53  Vict.  c.  69,  s.  1. 

-  "gift,  loan,  fee,  reward,  or  advantage." 

•'  See  note  '  on  p.  99. 

*  Ibid.  s.  2. 

*  As  in  Note  2  excluding  advantage. 


THE   CRIMINAL    LAW  99 


years  of  being  registered  as  an  elector,  or  voting  at  an  election 
either  of  members  to  serve  in  Parliament  or  of  members  of 
any  ^  public  body  ;  and 

(f.)  if  he  is  an  officer  or  servant  in  the  employ  of  any 
^  public  body,  at  the  discretion  of  the  Court  to  forfeit 
his  right  and  claim  to  any  compensation  or  pension  to  which 
he  would  otherwise  have  been  entitled. 

A  person  is  not  exempt  from  punishment  under  this  Act 
by  reason  of  the  invalidity  of  the  appointment  or  election  of 
a  person  to  a  public  office. 

Article  189. 
embracery. 

-  Every  one  commits  the  misdemeanour  called  embracery 
who  by  any  means  whatever  except  the  production  of  evidence 
and  argument  in  open  court  attempts  to  influence  or  instruct 
any  jurpnan,  or  to  incline  him  to  be  more  favourable  to 
the  one  side  than  to  the  other  in  any  judicial  proceeding 
whether  any  verdict  is  given  or  not,  and  whether  such  verdict, 
if  given,  is  true  or  false. 

'  "The  expression  'public  body'  means  any  council  of  a  countj-  or 
county  of  a  city  or  town,  any  council  of  a  municipal  borough,  also  any 
lioanl,  commissionere,  select  vestry,  or  other  body  wliich  has  power  to  act 
under,  and  for  the  purposes  of,  any  Act  relating  to  local  govcinment,  or 
the  public  health,  or  to  poor  law  or  otherwise  to  administer  money  raised 
Ity  rates  in  pursuance  of  any  public  general  Act,  but  does  not  incliule  any 
[)ublic  Iwdy  as  above  defined  existing  elsewhere  than  in  the  United  King- 
dom."' "  The  expression  '  public  office  '  mciins  any  office  or  employment 
of  a  person  as  a  member,  officer,  or  servant  of  sucli  public  boily."  See  the 
Act  as  to  the  meaning  of  "  advantage."     52  &  5.3  Vict.  c.  69,  s.  7. 

-  1  Hawk.  P.  C.  4(5H  ;  1  Russ.  Cr.  .360.  It  is  provided  by  the  Jury 
Act  of  1825,6  <;eo.  4,  c.  50,  s.  61,  that  "  notwithstanding  anything 
herein  contained  every  person  who  shall  be  guilty  of  the  offence  of 
embracery,  and  ever}'  juror  who  shall  wilfidly  or  corruptly  consent 
tliereto,'  shall  1)C  liable  to  be  proceeded  against,  and  punished  as  l)efore 
ilie  .Act.  I  do  not  know  what  was  tlie  reason  for  this  section.  See  Draft 
<  VkIc,  s.  1 29. 


II    -1 


100  A     DIGEST    OF 


Article  140. 
definition  of  bribery  of  voters. 

^  Every  one  is  guilty  of  bribery 

(n.)  Who  directly  or  indirectly  by  himself  or  by  any  other 
person  on  his  behalf, 

2  in  order  to  induce  any  voter  to  vote  or  refrain  from  votino^ 
at  any  election  ; 

^  or  corruptly  on  account  of  such  voter's  having  voted  or 
refrained  from  voting  at  any  election ; 

•*  or  in  order  to  induce  any  person  to  procure  or  endeavour 
to  procure  the  return  of  any  person  at  any  election,  or  the 
vote  of  any  voter  at  any  election, 

(i.)  ^  Gives,  lends,  or  agrees  to  give  or  lend,  or  offers  or  pro- 
mises, or  promises  to  procure  or  to  endeavour  to  procure  any 
money  or  valuable  consideration  to  or  for  ^  any  person  what- 
ever : 

(ii.)  "  Gives  or  procures,  or  agrees  to  give  or  procure,  or  offers 
or  promises,  or  promises  to  procure  or  to  endeavour  to  procure 
any  office,  place,  or  employment  to  or  for  any  person  what- 
ever ;  or 

(b.)  ^  Who  in  consequence  of  any  such  gift,  loan,  offer, 
promise,  procurement,  or  engagement,  procures  or  engages, 
promises  or  endeavours  to  procure  the  return  of  any  person 
in  any  election  or  the  vote  of  any  voter  at  any  election ;  or 

(c.)  ^  Who  advances  or  pays  or  causes  to  be  paid  any 
money  to,  or  to  the  use  of  any  other  person,  with  the  intent 
that  such  money  or  any  part  thereof  shall  be  expended  in 
bribery  at  any  election,  or  who  knowingly  pays  or  causes 
to  be  paid  any  money  to  any  person  in  discharge  or  repay- 

1  17  &  18  Vict.  c.  102,  s.  2. 

2  Ibid.  2  (1),  (2). 

3  Ibid.  ()),  (2). 

4  Ibid.  (3). 

-  Ibid.  (1),  (2). 

*"  Any  person  =  "  aii^-  voter,  or  to  or  for  any  person   on  behalf  of  any 
voter,  or  to  or  for  anv  other  person." 
7  17   &  18  Vict.  c.''l02,  s.  2  (1),  (2). 
»  Sect.  2  (4). 
'•»  Sect.  2  (5). 


THE    CRIMINAL    LAW  101 


ment  of  any  money  wholl}-  or  in  part  expended  in  bribery  at 
any  election ;  ^  or 

(V/.)-Who  being  a  voter  before  or  daring  any  election 
directly  or  indirectly  by  himself  or  by  an}'  other  person 
on  his  behalf  receives,  agrees,  or  contracts  for  any  money, 
gift,  loan,  or  valuable  consideration,  office,  place,  or  employ- 
ment for  himself  or  for  any  other  person  for  voting  or 
agreeing  to  vote,  or  for  refraining  or  agreeing  to  refrain  from 
voting  at  any  election  ;  or 

{€.)  ^  Who  after  any  election  directly  or  indirectly  by 
himself  or  by  any  other  person  on  his  behalf  receives  any 
money  or  valuable  consideration  on  account  of  any  person 
having  voted  or  refrained  from  voting,  or  ha\'ing  induced 
any  other  person  to  vote  or  to  refrain  from  voting  ;  or 

(/•)  ■*  Who,  either  directly  or  indirectly,  corruptly  pays  any 
rate  on  behalf  of  an}^  ratepayer  for  the  purpose  of  enabling 
him  to  be  registered  as  a  voter,  thereby  to  influence  his  vote 
at  any  future  election  ;  or 

{g.)  Any  candidate  or  other  person  who,  either  directly  or 
indirectly,  pays  any  rate  on  behalf  of  any  voter  for  the 
purpose  of  inducing  him  to  vote  or  refrain  from  voting ;  or 

(h.)  Any  person  on  whose  behalf  and  with  whose  privity 
any  such  payment  as  in  clauses  (/.)  and  {g.)  is  mentioned  is 
inadu. 

Article  141. 

dki  ixition  of  undue  influence. 

^  Every  cjiie  C(jmmits  the  offence  of  undue  influence 
(a.)  who  directly  or  indirectly  by  himself  or  by  any  other 
person  on  his  behalf  makes  use  of  or  threatens  to  make  use 

'  Tliin  clause  docH  not  "  exteinl  to  iiny  moiiL-y  jtaid  (»r  ugiXM-d  to  lie  paid 
for  or  on  account  of  any  legal  exijcnses  bond  jidt  in(-urred  in,  ;il,  oi-  con- 
cerning any  election." 

-'   17  &  18  Vict.  c.   102,  H.  :i  (1). 
Ihi.l.  8.  :\  (2). 

'  .'10  &  31  Vict.  c.  102,  B.  49.  The  words  of  the  proviso  at  the  end  of 
1 7  <k  1 H  V'ict.  c.  102,  s.  2  (see  Note  1 )  seem   to  l»c  appliualde  only  to  s.  2  (.'») 

•  4»i  &  47  Vict.  c.  .J I,  ».  2. 


102  A    DIGEST  OF 


of  any  force,  violence,  or  restraint,  or  inflicts  or  threatens 
to  inflict  by  himself  or  b}'  any  other  person  any  temporal 
or  spiritual  injury,  damage,  harm,  or  loss,  upon  or  against 
any  person  in  order  to  induce  or  compel  him  to  vote  or 
refrain  from  voting,  or  on  account  of  his  having  voted  or 
refrained  from  voting  at  an}-  election ;  or 

(i.)  who  by  abduction,  duress,  or  any  fraudulent  device 
or  contrivance  impedes,  or  prevents  the  free  exercise  of  the 
franchise  of  any  elector,  or  thereby  compels,  induces,  or 
prevails  upon  any  voter  either  to  give  or  refrain  from  gi\'ing 
his  vote  at  any  election. 

Article  142. 
definition  of  treating. 

^  Every  person  is  guilty  of  treating 

(a.)  who  corruptly  by  himself  or  by  any  other  person, 
either  before,  during,  or  after  an  election,  directly  or  indirectly 
gives  or  provides,  or  pays  wholly  or  in  part  the  expense  of 
giving  or  providing,  any  meat  drink  entertainment  or 
provision  to  or  for  any  person,  for  the  purpose  of  corruptly 
influencing  that  person  or  any  other  person  to  give  or  refrain 
from  giving  his  vote  at  the  election,  or  on  account  of  such 
person  or  any  other  person  having  voted  or  refrained  from 
voting,  or  being  about  to  vote  or  refrain  from  voting  at  such 
election ;  or 

(&.)  who  being  an  elector  corruptly  accepts  or  takes  any 
such  meat  drink  entertainment  or  provision. 

Article  143. 

punishment  of  bribery  at  certain  elections. 

^  Every  person  is  guilty  of  a  misdemeanour,  and  is  liablf 
upon   conviction   thereof  to  one   year's   imprisonment   and 

1  46  &  47  Vict.  c.  51,  s.  1. 

•-  17  &  18  Vict.  c.  102,  ss.  2,  3,  5  ;  45  &  46  Vict.  c.  50,  s.  78  ;  46  &  47 
Vict.  c.  51,  s.  6.  Personation  is  also  a  corrupt  practice,  and  is  punishable 
as  felony  ;  see  Art.  407. 


THE   CRIMINAL    LAW  103 

hard  labour,  or  to  be   fined  any  sum  not  exceeding  £200, 
who 

commits  bribery,  undue  influence,  or  treating  at  or  in 
respect  of  any  election  of  any  member  to  serve  in  Parliament, 
or  any  municipal  election. 

Article  144. 
offences  at  elections. 

^  Every  one  is  guilty  of  a  misdemeanour,  and  is  liable  to 
imprisonment  with  hard  labour  for  two  years,  if  he  is  a 
returning  officer  or  an  officer  or  clerk  in  attendance  at  a  poll- 
ing station,  or  for  six  months  if  he  is  any  other  person,  who 

(a.)  without  due  authority  supplies  any  ballot  paper  to 
any  person ;  or 

(b.)  fraudulently  puts  into  any  ballot  box  any  paper  other 
than  the  ballot  paper  which  he  is  authorised  by  law  to  put 
in  ;  or 

(c.)  fraudulently  takes  out  of  the  polling  station  any 
ballot  paper ;  or 

(d.)  without  due  authority  destroys,  takes,  opens,  or  other- 
wise interferes  \vith  any  ballot  box  or  packet  of  ballot  papers 
then  in  use  for  the  purposes  of  the  election. 

Article  145. 

definition  of  office. 

The  word  "  office  "  in  Articles  14G  and  147  includes 
2  Every  office  in  the  gift  of  the  Crown  or  of  any  officer 
appointed  by  the  Crown,  and  all  commissions,  civil,  naval, 
and  military,  and  all  places  or  employments  in  any  public 
(h.'partment  or  office  whatever  in  any  part  of  His  Majesty's 
duiiiinion.s  whatever,  and  all  deputations  to  any  such  office 
and  every  participation  in  the  profits  of  any  such  office  or 
deputation. 

'  3.")  8l  ;JU  Vict.  <■.  'Xi,  H.  :i  ;  iih  to  forging  Imllot  pupeis,  &«•. ,  Hi-e  poul. 
Art.  .S»4. 

-  .')  Si  V,  K.lw.  (i,  ..   Hi  ;  4!»  (If.).  :i,  c.  rju,  h.  1. 


1U4  .1    i>i(;i-'s'i'  or 

AirrnLr.  14(). 

SELIJNC    OK  KICKS. 

'  Evcrv  DiK'  couiiiiils  n  niisdciiicanoiir  v/ho  does  any  of  the 
t'oUowinr^  things  in  it's[ic>cl  of  any  office,  or  any  appointment 
to  or  residual  ion  of  any  office,  or  any  consent  to  any  such 
;i|»[ioiiiliuont  or  resignation,  that  is  to  say,  every  one  who 
directly  or  indirectly 

(a.)  sells  the  same,  or  receives  any  reward  or  protit  from 
the  sale  thereof,  or  agrees  to  do  so ; 

(/'.)  purchases,  or  gives  any  reward  or  profit  for  the  pur- 
chase thereof,  or  agrees  or  promises  to  do  so. 

-  Whoever  commits  either  of  these  misdemeanours  u})on  its 
commission  forfeits  to  the  King  an}-  right  whirli  he  may 
have  in  the  office,  and  is  disabled  to  hold  it  for  life,  and 
it  is  not  lawful  for  the  King  to  dispense  him  from  such 
disability. 

Article  147. 
making  interest  for  offices  for  reward. 

^  Every  one  commits  a  misdemeanour  who  does  any  of  the 
following  things  directly  or  indirectly  : 

(a.)  Receives  or  agrees  to  receive  any  reward  or  profit  for 
any  interest,  request,  or  negotiation  about  any  office,  or  under 
pretence  of  using  any  such  interest,  making  any  such  request, 
or  being  concerned  in  any  such  negotiation : 

(6.)  Gives  or  procures  to  be  given  any  profit  or  reward,  or 
makes  or  procures  to  be  made  any  agreement  for  the  giving 
of  any  profit  or  reward  for  any  such  request  or  negotiation 
as  aforesaid  : 

1  49  Geo.  3,  c.  126,  s.  3,  greatly  condensed. 

2  5  &  6  Edw.  6,  0.  16,  s.  1  ;  49  Geo.  3,  c.  126,  s.  2  ;  Inyram's  Case, 
1604,  3  Inst.  154.  The  5  &  6  Edw.  6,  c.  16,  s.  1,  is  repealed  as  to  offices 
in  the  Customs,  by  6  Geo.  4,  c.  105,  s.  10.  It  was,  however,  extended  to 
offices  in  the  Customs  as  well  as  to  many  others,  b}-  49  Geo.  3,  c.  126.  I 
do  not  quite  understand  the  result  of  this.  The  present  Customs  Act,  39 
&  40  Vict.  c.  36,  throws  no  light  on  the  subject. 

3  49  Geo.  3,  c.  126,  s.  4. 


TltE   CRIMINAL   LAW  105 

(c.)  Solicits,  recommends,  or  neo^otiates  in  any  manner  as 
to  any  appointment  to  or  resignation  of"  any  office  in  expec- 
tation of  any  reward  or  profit : 

(f?.)  ^  Keeps  ari}'  office  or  place  for  transacting  or  negotiating 
any  business  relating  to  vacancies  in  or  the  sale  or  purchase 
of  or  appointment  to  or  resignation  of  offices. 

1  49  Geo.  3,  c.  126,  s.  5. 


106  A    DIGEST   OF 


CHAPTER  XIV  1 

MISLEADIXa  .irsTICE—PEIUUHY^FALSE  SWEA  HIXG— 
SUBORXA  TlOX 

Article  148 
-  perjury  defined, 

•'  Perjury  is  an  assertion  upon  an  oath  duly  administered  in 
a  judicial  proceeding,  before  a  competent  Court,  of  the  truth 
of  some  matter  of  fact,  material  to  the  question  depending 
in  that  proceeding,  which  assertion  the  assertor  does  not 
believe  to  be  true  when  he  makes  it,  or  on  which  he  knows 
himself  to  be  ignorant. 

^  In  this  definition,  the  word  "  oath  "  includes  every  affirma- 
tion which  any  class  of  persons  are  by  law  permitted  to 
make  in  place  of  an  oath. 

^  The  expression  "  duly  administered  "  means  administered 

'  Man}'  cases  of  offences  resembling,  or  punishable  as,  perjury,  are  to  be 
found  in  the  statutes  which  are  not  mentioned  in  this  chapter.  An  Act 
not  otlierwise  connected  with  criminal  law  may  make  some  form  of  false 
declaration,  &c.  an  ott'ence,  and  though  sucli  offences  are  numerous  they 
are  not  important,  and  are  therefore  omitted  from  the  text.  A  great  many 
of  them  would  have  been  merged  into  the  Perjury  Bill  of  1894  had  that 
measure  become  law.  Its  effect  in  that  direction  would  no  doubt  have 
been  useful.  It  ma}'  be  added  that  the  repealing  Schedule  of  tlie  Bill 
referred  to  nearly  140  enactments,  and  was  not  then  quite  exhaustive.  It 
is  probable  that  a  similar  Bill  will  soon  be  passed,  when  some  of  the  above 
chapter  will  become  ol)solete. 

2  See  3  Hist.  Cr.  Law,  pp.  240-50. 

3  3rd  Inst.  164-1G7  ;  I  Hawk.  P.  C.  429-435  ;  3  Russ.  Cr.  1,  &c.,  and 
see  note,  5th  Report,  C.  L.  C.  p.  23.     Draft  Code,  s.  119. 

*  Many  statutes  to  this  effect  have  been  passed.  See  in  particular  5  & 
6  Will.  4  c.  62,  s.  21  ;  51  &  52  Vict.  c.  46  and  52  &  53  Vict.  c.  63,  s.  3, 
and  see  statutes  as  to  particular  religious  bodies  collected  in  3  Russ.  Cr. 
26-9. 

^  14  &  15  Vict.  c.  99,  s.  16,  passed  to  remove  doubts  in  the  question  by 
whom  an  oath  might  be  administered,  3  Russ.  Cr.  3.  As  to  Commissioners 
see  52  Vict.  c.  10,  s.  7,  as  to  arbitrators,  52  &  53  Vict.  c.  49,  s.  22.  As 
to  using  a  form  binding  on  the  witness's  conscience  see  1  &  2  Vict.  c.  1 05  ; 
Omichund  v.  Barker,  1744,  1  Atk.  21. 


THE   CRIMINAL   LAW  107 

in  a  form  binding  on  his  conscience,  to  a  witness  legally 
called  before  them,  by  any  Court,  judge,  justice,  officer, 
commissioner,  arbitrator,  or  other  person,  who  by  the  law 
for  the  time  being  in  force,  or  by  consent  of  the  parties,  has 
authority  to  hear,  receive,  and  examine  evidence. 

^  The  fact  that  a  person  takes  an  oath  in  any  particular 
form  is  a  binding  admission  that  he  regards  it  as  binding  on 
his  conscience. 

-  The  expression  "judicial  proceeding  "  means  a  proceed- 
ing which  takes  place  in  or  under  the  authority  of  any 
Court  of  Justice,  or  which  relates  in  any  way  to  the  adminis- 
tration of  justice,  or  which  legally  ascertains  any  right  or 
liability. 

^  A  proceeding  may  be  judicial  although  the  person  accused 
in  it  was  brought  before  the  Court  by  which  the  proceeding 
is  held  by  an  irregular  warrant. 

•*  The  word  "  fact  "  includes  the  fact  that  the  witness  holds 
any  opinion  or  belief. 

^  The  word  "  material  "  means  of  such  a  nature  as  to  affect 
in  any  way,  directly  or  indirectly,  the  probability  of  any- 
thing to  be  determined  by  the  proceeding,  or  the  credit  of 
any  witness,  and  a  fact  may  be  material  although  evidence  of 
its  existence  was  impnjperly  admitted. 

Illustrations. 

(1.)  A  swears  that  certain  goods  are  of  a  certain  value. 

*'  A  is  entirely  ignorant  upon  the  subject.  A  is  guilty  of 
perjury  whether  the  goods  are  of  that  value  or  not. 

The  gooiJs  are  not  of  that  value,  and  xV  knows  it.  A  has 
committed  perjury. 

'  The  go<jds  are  of  tliat  value,  but  A  believes  that  they  are 
not.      A  has  ctjtiwnittcd  perjury. 


'  SdU  V.  //oare,  1822,  3  B.  &  U.  2.S2. 

-  IlluHtrutioiiH  (2),  (3),  (4). 

^  H.  V.  HiiijhuH,  1879,  4  (.».   15.   D.  (il  ». 

*  IlluHtration  (5). 

''  IlluHtrations  (0),  (7). 

"  H.  V.  Mawbey,   I7i((5,  (i  'I'.    K.  at   ji.  (l.'JT. 

'  {JHritiij'H  C(iM< ,  Kill,  ;{  liiMi.   IGti. 


108  A    DIGEST   OF 


The  goods  are  not  of  that  value,  but  A  believes  that  they  are. 
A  has  not  committed  perjur}'. 

(2.)  ^  A  proceeding  before  a  local  marine  board  sitting  under 
the  Merchant  Shipping  Act  1S54,  and  having  power  to  suspend 
or  cancel  the  certificates  of  the  masters  and  mates  of  ships,  is  a 
judicial  proceeding. 

(3.)  -  An  inquir}'  before  a  sheriff  as  to  the  amount  of  damages 
is  a  judicial  proceeding. 

(4.)  '^  An  inquir}'  before  a  justice  of  the  peace  as  to  making  a 
man  find  sureties  for  thf  peace  is  a  judicial  proceeding. 

(5.)  *  A  swears  that  he  thinks  certain  words  are  in  his  hand- 
writing. The  jury  find  that  lie  did  not  think  so.  A  commits 
perjury. 

(6.)  ^  A,  a  witness  under  cross-examination,  denies  an  impu- 
tation which  goes  to  his  credit  only.  B  is  improperly  permitted 
to  contradict  A.  B  swears  falsely.  B  commits  perjury  on  a 
material  fact. 

(7.)  ^  A  falsely  swears  that  he  has  examined  a  paper,  alleged 
to  be  a  copy,  with  an  original  will,  in  order  to  make  the  copy 
admissible.  The  paper  is  not  put  in  evidence,  and  it  would  not 
have  been  admissible  if  it  had  been  tendered.  A  commits 
perjury  on  a  material  fact. 

Article  148  A. 

FALSE  EVIDENCE  NOT  UPON  OATH 

^  Any  witness  whose  unsworn  evidence  has  been  admitted 
under  s.  4  of  the  Criminal  Law  Amendment  Act,  1885,  is 
liable  to  indictment  and  punishment  for  perjury  in  all  respects 
as  if  he  or  she  had  been  sworn. 

Any  child    whose   evidence  not   upon  oath    is  received 


8 


1  R.  V.  Tomlinson,  1866,  1  C.  C.  R.  49. 
^  1  Hawk.  P.  C.  430. 

3  Ibid. 

4  R.  V.  Schlesinr/er,  1847,  10  Q.  B.  670. 

»  R.  V.  Oihhon,  1861,  L.  &  C.  109.  In  the  later  case  of  R.  v.  Tyson, 
1869,  1  C.  C.  R.  107,  R.  v.  Gibbon  was  followed,  but  the  facts  are  not  so 
strong.  See,  too,  R.  v.  Mnllany,  1865,  L.  &  C.  593,  and  R.  v.  Baker 
[1895],  1  Q.  B.  797.  «  rhiliioWs  Case,  1851,  2  Den.  C.  C.  302. 

7  48  &  49  Vict.  c.  69,  s.  4. 

*  57  &  58  Vict.  c.  41,  s.  15.  The  text  gives  the  effect  of  the  section, 
which,  without  using  the  word  misdemeanour,  enacts  that  the  child  is 
"  liable  to  be  indicted  and  tried  for  such  offence."  The  punishment  on 
conviction  is  "  such  punishment  as  is  provided  for  by  s.  11  of  the 
Summary  Jurisdiction  Act,  1879,  in  the  case  of  juvenile  offenders,"  42  & 


THE    CRIMINAL   LAW  109 

under  s.  15  of  the  Prevention  of  Cruelty  to  Children  Act, 
1894,  and  who  wilfully  crives  false  evidence  is  guilty  of  a 
misdemeanour,  and  liable  to  three  months'  imprisonment 
with  hard  labour. 

Article  149. 

subornation  of  perjury. 

^  Subornation  of  perjury  is  procuring  a  person  to  commit  a 
perjury,  which  he  actually  commits  in  consequence  of  such 
procurement. 

Article  150. 

punishment  of  perjury  and  subornation. 

-  Perjury  and  subornation  of  perjury  are  misdemeanours, 
and  every  one  who  commits  either  is  liable,  upon  conviction, 
to  an}-  term  of  penal  servitude,  or  imprisonment  with  or 
without  hard  labour,  not  exceeding  seven  years. 

Article  151. 

FALSE     swearing. 

^  Every  one  commits  a  misdemeanour  who  swears  falsely 
before  any  person  authorised  to  administer  an  oath  upon  a 
matter  of  public  concern,  under  such  circumstances  that  the 
false  swearing  if  committed  in  a  judicial  proceeding  would 
have  amounted  to  perjury. 


43  V^ict.  H.  1 1  i.s  an  extremeh'  elaborate  Kcction,  and  provides  an  alterna- 
tive punishment  of  whipping  with  a  birch  rod  for  juvenile  oU'enders 
l>elieved  to  be  over  fourteen.  It  is  not  probalile  that  a  child  f)ver  fourteen 
would  be  permitted  to  give  evidence  not  upon  oath. 

'  If  the  perjury  is  not  committed,  the  crime  is  incitement :  aee  Article 
48.     See  also  1   Hawk.  P.  C.  43.'),  c.  27,  s.   10.      Draft  Co.le,  s.  119. 

'^  The  jjunishment  at  common  law  was  whij)ping,  imprisonnient,  Hue,  and 
pillory.  iJy  '1  (Jeo.  2,  c.  25,  s.  2,  seven  years  transportation  or  im])rison- 
ment  with  hard  laliour  was  added.  By  .3  (Jeo.  4,  c.  I  14,  hard  labour  was 
again  authorised,  I  know  not  why.  By  7  Will.  4  k  1  Vict.  c.  23,  tlio 
pillory  was  aliolishe*!.  Whipping  is  obsolete.  Fines  fall  under  .\rtirle  23, 
Th\is  the  text  npresentH  tin-  rchull.      Cf.   Draft  (V.de,  ss.   12(1,   1. 

•'  .See  (JahCH  in  I lluht rations.      Draft  (.lode,  s,    122. 


no  A    DIGEST   OF 


Illtistrations. 

(] ,)  ^  A  takes  a  false  oath  before  a  surrogate  in  order  to  obtain 
a  marriage  licence.      A  commits  a  misdemeanour. 

(2.)  -  A  takes  a  false  oatli  liefore  commissioners  appointed 
by  the  king  to  inquire  into  cases  in  wliich  a  royal  grant  was 
recjuired  to  confirm  title  to  lands.      A  commits  a  misdemeanour. 

(3.)  ^  A  swears  a  false  affidavit  under  the  Bills  of  Sale  Act 
(17  k  18  Vict  c.  36).     A  commits  a  misdemeanour. 

Article  152. 
forging  instruments  of  evidence  and  tendering  them 

IN   PROOF. 

Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  seven  years  penal  servitude,  who  does  any  of  the 
following  things  (that  is  to  say), 

(«.)*  forges  the  seal,  stamp,  or  signature  of  any  such 
certificate,  official,  or  public  document,  or  document  or  pro- 
ceeding of  any  cor})oration  or  joint  stock  or  other  company 
as  is  mentioned  or  referred  to  in  the  preamble  to  8  &  9 
Vict.  c.  118.  or  of  any  document  referred  to  in  14  &  15  Vict, 
c.  99,  or  any  certified  copy  of  any  document,  bye-law,  entry 
in  any  register,  or  other  book  or  other  proceeding  in  the  first- 
mentioned  Act  referred  to  ;  or 

{h.)  tenders  in  evidence  any  such  document  knowing  the 
same  to  be  false  and  counterfeit ;  or 

(c.)  forges  the  signature  of  any  judge  of  the  Supreme 
Court  attached  or  appended  to  any  decree,  order,  certificate, 
or  other  judicial  or  official  document ;  or 

{(l.)  tenders  in  evidence  any  such  document  knowing  the 
same  to  be  false  or  counterfeit ;  or 

(c.)  prints  any  copy  of  any  private  Act  or  of  the  journals 

»  Chapman's  Case,  1849,  1  Den.  C.  C.  432. 

2  Spier  V.  Read,  1715,  Hobart,  62.  This  case  is  given  by  Hawkins,  1 
P.  C.  430,  as  an  instance  of  perjurj'  in  a  proceeding  not  judicial  ;  but 
this,  I  think,  is  a  misconception. 

3  R.  V.  Hodgkiss,  1869,  1  C.  C.  R.  212. 

*  8  &  9  Vict.  c.  113,  s.  4,  and  see  my  Digest  of  the  Law  of  Evidence, 
Art.  79.     See  Draft  Code,  s.  125. 


THE    CRIMINAL    LAW  111 

of  either  House  of  Parliament,  falsely  purporting  to  have 
been  printed  by  the  printers  to  the  Crown,  or  to  either 
House  of  Parliament ;  or 

(/!)  tenders  in  evidence  any  such  copy,  knowing  it  not  to 
have  been  printed  by  the  person  by  whom  it  purports  to 
have  been  printed  ;  or 

{g^  ^  tenders  in  evidence,  or  otherwise  uses,  any  affidavit 
having  any  seal  or  signature  of  any  person  authorised  by  or 
under  the  Commissioner  for  Oaths  Act  1889  (52  Vict.  c.  10), 
to  administer  an  oath,  forged  or  counterfeited  or  fraudulently 
altered  knowing  the  same  to  be  forged,  counterfeited,  or 
fraudulently  altered. 

Article  153. 
officers  giving  false  certificates. 

-  Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  eighteen  months  imprisonment,  who 

Being  an  officer,  required  or  authorised,  by  14  &  15  Vict. 
c.  99,  to  furnish  any  certified  copy  under  that  Act,  wilfully 
certifies  any  document  as  being  a  true  copy  or  extract 
knowing  that  the  same  is  not  a  true  copy  or  extract. 


Article  154. 

FALSE    ENTRIES    AS    TO    f OI'VRKiHT. 

•*  Every  one  is  guilty  of  a  inisdcmeanuur  who  wilfully  pro- 
duces or  causes  to  be  tendered  in  evidence  any  paper  falsely 
purporting  to  be  a  copy  of  any  entry  in  the  registry  book 
of  the  Stationers'  Company. 

'  52  Vict.  c.  1 0,  8.  s. 

■2  14  &  15  Vict.  c.  99,  8.  15. 

•I  .-|  &  ()  Vi<l.  V.  4.-).  s.  12. 


112  A    DIGEST   OF 


AirncLE  155. 

FALSE    DECLARATION,     I'EUSONATION,    ETC.,     ■1(  •    OUTAIN     A 
PENSION   UNDER  THE   POLICE   ACT. 

^  Every  one  who  obtains  or  attcinpts  to  obtain  for  liimsclf 
or  for  any  other  person  any  pension,  gratuity,  or  allowance 
under  the  Police  Act  1890,  or  any  payment  on  account 
of  any  such  pension,  gratuity,  or  allowance,  by  means  of  any 
false  declaration,  false  certificate,  false  representation,  false 
evidence,  or  personation,  or  by  malingering  or  feigning 
disease  or  infirmity,  or  by  maiming  or  injuring  himself  or 
causing  himself  to  be  maimed  or  injured  or  otherwise 
producing  disease  or  infirmity,  or  by  any  other  fraudulent 
conduct,  is  liable  on  conviction  by  a  jury  to  imprisonment 
with  hard  labour  for  two  years,  and  to  forfeit  any  pension, 
gratuity,  or  allowance  so  obtained. 

Article  156. 
maintenance.- 

^  Maintenance  is  the  act  of  assisting  the  plaintiff  in  any 
legal  proceeding  in  which  the  person  giving  the  assistance 
'has  no  valuable  interest,  or  in  which  he  acts  from  any 
improper  motive. 

Champerty  is  maintenance  in  which  the  motive    of   the 

1  53  &  54  Vict.  c.  45,  s.  9. 

-  In  the  earlier  editions  of  this  work  I  included  under  this  head  the 
offence  of  selling  pretented  titles.  The  whole  matter  is  so  indefinite,  and 
partakes  so  much  more  of  the  nature  of  a  civil  penalt}'  than  of  a  crime, 
that  I  have  left  it  out.  The  law  upon  the  subject  will  be  found  in 
32  Hen.  8,  c.  9.  See  Jenkijis  v.  Jones,  1882,  9  Q.  B.  I).  128,  on  the  effect 
of  8  &  9  Vict.  c.  106  uj)on  32  Hen.  8,  c.  9,  and  Kenned;/  v.  Lya//,  1885, 
15  Q.  B.  D.  491,  on  the  meaning  of  a  "pretended  title." 

■'  All  the  authorities  on  the  subject  are  fully  examined  in  Bradlanf)h 
V.  Newdegate,  1883,  11  Q.  B.  U.  1.  They  are  numerous,  but  all  come  to 
the  same  thing  ;  see,  too,  1  Pvu.ss.  Cr.  351-359.  As  to  barratry,  id.  362-3. 
See  also  1  Hawk.  P.  C.  454-466,  and  Note  IIL  in  Appendix.  See  also 
3  Hist.  Cr.  Law,  234-40.  The  old  Statute  of  Conspirators,  33  Edw.  1, 
and  many  other  ancient  statutes  (3  Edw.  1,  c.  25  ;  13  Edw.  1,  c.  49; 
1  Edw.  3,  St.  2,  c.  14  ;  1  Ric.  2,  c.  4  ;  32  Hen.  8,  c.  9  ;  4  Edw.  3,  c.  11) 
refer  to  these  offences,  but  do  not  throw  much  light  on  llieir  nature, 


THE    CRIMINAL    LAW  113 

maintainor  is  an  agreement  that  if  the  proceeding  in  which 
the  maintenance  takes  place  succeeds,  the  subject-matter  of 
the  suit  shall  be  divided  between  the  plaintiff"  and  the 
maintainor. 

A  common  barrator  is  one  who  habitually  moves,  excites, 
or  maintains  suits  or  quarrels,  either  at  law  or  otherwise. 

Whoever  commits  maintenance,  or  champerty,  or  is  a 
common  barrator,  is  guilty  of  a  misdemeanour. 

^  Every  person  who  })ractisos  as  a  solicitor  or  agent  in 
any  suit  or  action,  after  having  been  convicted  of  forgery, 
perjury,  or  common  barratry,  is  liable  to  seven  years  penal 
servitude  upon  an  order  to  be  made  by  the  judge  or  judges 
of  the  Court  in  which  the  suit  or  action  was  brought,  who 
must  upon  complaint  or  information  examine  the  matter 
in  a  summary  way  in  open  court. 

-  Every  one  who  sues  any  person  in  the  name  of  a  ficti- 
tious plaintiff",  or  in  the  name  of  a  real  person,  but  without 
his  authority,  commits  a  misdemeanour,  and  must,  upon  con- 
viction thereof,  be  imprisoned  for  six  months. 

Article  157. 
ron.spiracv  to  defeat  justice — dissuading  witnesses 

FROM    'lESTIFVING. 

Every  one  commits  a  misdemeanour  who 

{n.)  •'conspires  with  any  other  person  to  accu.sc  any  person 
falsely  of  any  crime,  or  to  do  anything  to  obstruct,  prevent, 
pervert,  <jr  defeat  the  course  of  justice  ;  or 

(/'.)  Mil  order  to  obstruct  the  due  ccjuisc  of  justice, 
dissuadi's,  hinders,  or  prevents  any  person  lawfully  bound 
to  app(.'ar  and  give  evidence  as  a  witness  from  so  appearing 
and  giving  evidence,  or  endeavouis  to  do  so:  oi- 

'    1-2  (!(.'o.  1,  c.  '29,  H.  4. 

-   18  Kli/..  c.  5,  H.  4  (redrawn  ami  iiiodcrniHC*!). 

'   Kvery  perHon  i:onvirte<l  of  an  olloncc!  a^^aiiist  cIhuhc  (a.)  is  liaMo  to  be 
'  iiUinced    to  lianl   lalKjiir.      \Vrif,'lit    on   (JonspiracicK,  :U) ;   Wk  IT)  V'i<it. 
100,  K.  '20  ;  i.f.  Draft  (Vm1<-,  sh.   I '2(1,  7,  S. 

'    I    Hawk,  1".  ('.  HI  :    A'.  V.   Lndij  Lau-liif,   17-'l,  Sliani:;c,  IHI)  ;   ami  hlh- 
ii  Hop.  C  L.  ('.  p.  ."iO,  .Art.  .">7. 

I 


114  A    DIGEST   OF 


(c.)  ^obstructs  or  in  any  way  interferes  with,  or  know- 
ingly prevents  the  execution  of  any  loc^al  process,  civil  or 
criminal. 

ARTirr.K   15S. 

INTIMIDATION   OF   WITNESSES   BEFORE    A    ROYAL   COMMISSION. 

-Everyone  is  guilty  of  a  misdemeanour  and  is  liable  to 
a  penalty  not  exceeding  £100  or  imprisonment  for  three 
months  who 

threatens  or  in  any  way  punishes,  damnifies  or  injures 
any  person  for  having  given  evidence,  or  on  account  of  the 
evidence  which  he  has  given,  upon  any  inrpiiry,  unless  the 
evidence  was  given  in  bad  faith  ;  or  attempts  to  do  so. 

■'^The  Court  may  order  a  person  convicted  of  this  offence 
to  pay  the  whole  or  any  part  of  the  costs  of  the  prosecution 
and  conviction ;  and  on  the  application  of  the  complainant 
award  compensation  for  loss  of  situation,  wages,  status,  or 
other  damnification  or  injury,  through  or  by  means  of  the 
offence  ;  of  which  the  amount  is  to  be  determined  by  the 
jury  ;*  and  which  may  be  recovered  by  the  person  entitled 
from  the  person  convicted. 

^  In  this  Article  "  inquiry  "  means  any  inquiry  held  under 
the  authorit}^  of  any  Royal  Commission  or  by  any  Com- 
mittee of  either  House  of  Parliament,  or  pursuant  to  any 
statutory  authority  whether  the  evidence  at  such  inquiry 
is  or  is  not  given  on  oath,  but  does  not  include  any  inquiry 
by  any  Court  of  Justice. 

1  Cases  collected  in  1  Russ.  Cr.  558-561. 
-  55  &  56  Vict.  c.  65,  s.  3. 
3  Ibid.  s.  4. 
^  Ibid.  s.  5. 
'  Ibid.  s.  1. 


THE   CRIMINAL    LAW  115 


CHAPTER  XV. 

efica  pe— rescue— pri:<ox-  brea  ch— misprisions— 
compounding  offences 

Article  159. 

voluntary  permission  by  officers  of  escapes  by 
prisoners. 

^  Every  one  who  knowingly,  and  with  an  intent  to  save 
him  from  trial  or  execution,  permits  any  person  in  his  lawful 
custody  to  regain  his  liberty,  otherwise  than  in  due  course 
of  law,  commits  the  offence  of  voluntary  escape  ;  and 

is  guilty  of  high  treason  if  the  escaped  prisoner  was  in  his 
custody  for  and  was  guilty  of  high  treason  ; 

becomes  an  accessory  after  the  fact  to  the  felony  of  which 
the  escaped  prisoner  was  guilty,  if  he  was  in  his  custody  for 
and  was  guilty  of  felony  ;  and 

is  guilty  of  a  misdemeanour  if  the  escaped  prisoner  was  in 
his  custody  for  and  was  guilty  of  a  misdemeanour. 


Article  160. 

negligent  permission  by  officers  of  escapes  by 
prisoners. 

-Every  one  is  guilty  of  the  mi.sdemeanour  called  negligent 
•  -cape  who,  by  the  neglect  of  any  duty,  or  by  ignorance  of 
the  law,  permits  a  person  in  his  lawful  custody  to  regain  his 
liberty  otherwise  than  in  due  course  dT  law. 

'  2  Hawk.  p.  C.  Ifl'J,  HHi,  197  ;  I  Rush.  ( 'r.  ")()!!.  It  rloos  not  iippoiir 
what  JH  thfi  effect  of  voliiiitarily  permitting'  tlie  escape  of  a  man  lawfully 
'harj^ed,  hut  innocent  in  fact.      Draft  fVxle,  h.   \'!^H. 

-  I  Hale,  P.  ('.  nOO  «02  ;  2  Hawk.  P.  C  194  (Hpcaks  •louhtfully  as  to 
the  (wconrl  paragraph;.      Cf.  Draft  (Jwlc,  h.   140. 

I  2 


116  A    DIGEST   OF 


The  person  escaping  is  deemed  to  have  regained  his 
liberty  as  soon  as  he  gets  out  of  sight  o(  the  person  from 
whom  he  escapes,  and  not  before. 


Article  161. 
sheriff  procuring  concealment  or  permitting  escape. 

^Any  person  being  a  sheriff,  under-sheriff,  baiUff,  or  officer  of 
a  sheriff,  whether  within  a  franchise  or  without,  is  guilty  of  a 
misdemeanour  and  liable  to  imprisonment  for  not  exceeding 
one  year  and  to  pay  a  fine,  and  if  he  has  not  wherewith  to  pay 
a  fine,  to  imprisonment  for  three  years,  who  — 

(a)  conceals  or  procures  the  concealment  of  any  felon  ; 

{b)  lets  go  at  large  a  prisoner  who  is  not  bailable. 

Article  162. 

rescue  defined. 

-Rescue  is  the  act  of  forcibly  freeing  a  person  from  custody 
against  the  will  of  those  who  have  him  in  custody.  If  the 
person  rescued  is  in  the  custody  of  a  private  person,  the 
offender  must  have  notice  of  the  fact  that  the  person  rescued 
is  in  such  custody. 

Article  163. 

quality  of  offence  of  rescue. 

^  Every  one  commits  high  treason,  felony,  or  misdemeanour 
who  rescues  a  prisoner  imprisoned  on  a  charge  of,  or  under 
sentence  for,  high  treason,  felony,  or  misdemeanour  respec- 
tively. ■*  Any  offender  convicted  of  such  a  misdemeanour  is 
liable  to  be  sentenced  to  hard  labour. 

»  50  &  51  Vict.  c.  55,  s.  29. 

-   I  Russ.  Cr.  582  ;  2  Hawk.  P.  C.  201. 

3  Hale,  P.  C.  606  ;  I  Russ.  Cr.  582-584.      Draft  Code,  s.  I. 36. 

*  U  &  15  Vict.  c.  100,  s.  29. 


THE   CRIMINAL   LAW  117 

Article  164. 

felonious  rescues. 

^  Whoever  feloniously  rescues  any  prisoner  is  liable  to 
seven  years  penal  servitude,  or  to  imprisonment  with  hard 
labour  for  three  years. 

Article  1G5. 

RESCUING   MURDERERS. 

-  Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  penal  servitude  for  life,  who  by  force  sets  at  liberty, 
rescues,  or  attempts  to  rescue,  or  set  at  liberty  any  person 
out  of  prison,  committed  for  or  found  guilty  of  murder,  or 
rescues  or  attempts  to  rescue  any  person  convicted  of  murder, 
going  to  execution  or  during  execution. 

Article  166. 
assisting  escape  of  prisoners  of  war. 

^  Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  penal  servitude  for  life,  who 

(a.)  *  assists  any  alien  enemy  of  His  Majesty,  being  a 
prisoner  of  war  in  His  Majesty's  dominions,  whether  such 
prisoner  is  C(jntined  as  a  prisoner  of  war  in  any  prison  or 
other  place  of  conHncment,  or  is  suffered  to  be  at  large  on 
his  panjle  in  His  Maj(,'sty's  dominions  or  in  any  part  thereof, 
to  escape  from  such  prison  ov  [)hice  of  conHnenient,  or  from 
His  Majesty's  dominions,  if  at  large  on  his  '  pai'oie  ;  or 

{b.)  ''  who  fowing    allegiance    to   His  Majesty)    allt-r    any 

'  1  &  2  (jeo.  4,  <;.  8S,  H.  1.  Tliu  ofi'uiice  wiih  fonuerl}'  u  cleigyablu 
felony,  ho  that  tltiH  enactment  incrcuwed  the  jjunislinient. 

-  'la  Geo.  2,  c.  :{7,  H.  9.  Ah  to  |niiii.sliiiitiil.  7  Will.  4  A:  I  Viit.  c.  SM. 
Cf.  Draft  Code,  k.   Wir,. 

-  52  (Jeo.  3,  c.   I5G.      Ihixil  Code,  ^.    l.fl. 
«  Ibid.,  H.   1. 

''  /h{d. ,  H.  2. 
«  Ibid.,  H.  .-{. 


118  A    DIGEST  OF 


such  prisoner  as  afores.aid  has  quitted  the  coast  of  any  part 
of  His  Majesty's  dominions  in  such  his  escape,  knowingly 
and  wilfully  upon  the  high  seas  aids  or  assists  such  prisoner 
in  his  escape  towards  any  other  dominions  or  place. 


Article  167. 

assisting  escape  from  a  constable  or  peace  officer. 

^  Every  person  who  aids  or  assists  any  prisoner  to  attempt 
to  make  his  escape  from  the  custody  of  any  constable  or  other 
officer  or  person  who  then  has  the  lawful  charge  of  him  in 
order  to  carry  him  to  gaol  by  vii'tuc  of  a  warrant  of  com- 
mitment for  treason  or  any  felony  (except  petty  larceny) 
expressed  in  such  warrant  is  guilty  of  felony  and  liable  to 
seven  years  penal  servitude. 

Article  168. 
helping  to  escape  from  prison. 

2  Every  one  commits  felony  and  is  liable  upon  conviction 
to  be  sentenced  to  imprisonment  with  hard  labour  for  tw^o 
years,  who  aids  any  prisoner  in  escaping  or  attempting  to 
escape  from  any  ■*  prison,  or  who,  with  intent  to  facilitate  the 
escape  of  any  prisoner,  conveys  or  causes  to  be  conveyed  into 
any  prison,  any  mask,  dress,  or  other  disguise,  or  any  letter, 
or  any  other  article  or  thing. 

1  16  Geo.  2,  c.  31,  s.  3.  This  section  also  contains  the  punislinient  for 
the  rescuing  of  prisoners  from  transport  vessels,  now  obsolete. 

■■2  28  &  29  Vict.  c.  126,  s.  37.  The  word  "thing"  at  the  end  of  the 
section  is  not  confined  to  things  ejnudem  generis.  It  includes  a  crowbar  : 
B.  V.  Payne,  1866,  I  C.  C.  R.  27.      Draft  Code,  s.  137. 

3  "Prison"  means  "gaol,  house  of  correction,  bridewell,  or  peni- 
tentiary." It  also  includes  "the  airing-grounds  or  other  grounds  or 
buildings  occupied  by  prison  officers  for  the  use  of  the  prison,  or  con- 
tiguous thereto,"  28  &  29  Vict.  c.  176,  s.  4. 


THE    CRIMINAL    LAW  119 

Article  169. 

escape  by  persons  in  custody. 

^  Ever}'  one  commits  a  misdemeanour,'-  and  is  liable  upon 
conviction  thereof,  to  imprisonment  with  hard  labour,  who, 
being  lawfully  in  custody  for  any  criminal  offence,  escapes 
from  that  custody. 

Article  170. 

breaking  prison. 

^  Every  one  commits  felony  who,  bein^  lawfully  detained  on 
a  charge  of,  or  under  sentence  for,  treason  or  felony,  breaks 
out  of  the  place  in  which  he  is  so  detained,  against  the  will 
of  the  person  by  whom  he  is  detained. 

If  the  offender  is  detained  under  a  charge  of  misdemeanour 
the  offence  of  breaking  out  of  the  place  of  confinement  is  a 
misdemeanour,^  and  is  liable  on  conviction  to  be  sentenced  to 
hard  labour. 

The  expression  "  breaks  out "  means  an  actual  breaking  of 
the  place  in  which  the  party  is  confined,  whether  intentional 
or  not. 

Illustrations. 

(1.)  *  A,  lawfully  confined  in  prison  under  a  charge  of  felony, 
climb.s  over  the  prison  wall  and  escapes.  A  has  not  committed 
an  offence  within  this  Article  (though  he  has  within  Article 
169). 

(2.)  ■•  On  the  top  of  the  prison  wall  hjose  bricks  are  arranged 
so  as  to  fall  if  disturbed.  In  climbing  over  the  wall  A  acci- 
dentally disturbs  and  throws  down  one  of  them.  A  has 
committed  an  offence  within  this  Article. 


'  -2  Hawk.  I'.  C.  183.     Draft  Code,  ss.  133,  4. 

-    14  &  1.J  Vict.  <•.   lOU,  .s.  L'9. 

"•  1  Hawk.  v.  C.  is:i  IS!)  ;  1  Kiis.s.  Cr.  nTT  AHl.  Tliere  is  a  good  deal 
of  learning  on  the  Huljject  founded  on  1  Kdw.  'J,  st.  2,  "  De  fningentibus 
prisonani,"  hut  it  iH  nioHtly  practically  olmolete.  This  Htatute  is  not 
mentioned  in  the  ReviHed  StatutcH  or  in  llie  Clironologica!  Taliie  of 
Statuten.      I>nift  (J<j<le,  b.   13'J. 

«    /.'.   V.    llanwdl,    1H-_>I,   R.  &   K.   4.'-.S. 


120  A    DIGEST   OF 


Article  171. 

escaping  from  certain  prisons. 

^  Every  convict  confined  in  Pentonville  and  every  offender 
ordered  to  be  confined  in  Parkliurst  Prison  is  liable  to  the 
consequences  hereinafter  mentioned  who 

at  any  time  during  the  term  of  his  imprisonment  breaks 
prison ;  or 

who,  while  being  conveyed  to  such  prison,  escapes  from 
any  person  having  the  lawful  custody  of  him ;  or 

who  (being  ordered  to  be  confined  in  Parkhurst  Prison) 
escapes  from  the  place  of  his  confinement,  or  frf)m  any  lands 
belonging  to  the  prison. 

Every  such  offender  may  for  his  first  offence  be  punished 
by  an  addition  to  the  term  of  his  imprisonment,  not  exceeding 
three  years  in  the  case  of  prisoners  confined  in  Pentonville 
Prison,  and  two  years  in  the  case  of  prisoners  under  sentence 
of  imprisonment  in  Parkhurst  Prison.  Offenders  under  sen- 
tence of  penal  servitude  in  Parkhurst  Prison  ai'e  liable  to  be 
punished  in  the  same  manner  as  other  persons  under  sentence 
of  penal  servitude  escaping  from  their  place  of  confine- 
ment. 

If  any  offender  punished  by  such  addition  as  aforesaid  to 
his  term  of  imprisonment  is  afterwards  convicted  of  a  second 
escape  or  breach  of  prison  he  is  guilty  of  felony. 

Every  person  confined  in  either  of  the  said  prisons  is  liable 
to  be  punished  by  an  addition  not  exceeding  twelve  months 
to  the  term  of  his  imprisonment  who  attempts  to  break 
prison  (or  in  the  case  of  Parkhurst  Prison  to  escape  from 
the  place  of  his  confinement),  or  forcibly  breaks  out  of  his 
cell,  or  makes  any  breach  therein  with  intent  to  escape 
therefrom. 

1  As  to  Parkhurst  Prison,  I  &  2  Vict.  c.  82,  s.  12  ;  Pentonville,  5  &  6 
Vict.  c.  29,  s.  24.  This  Article  fornierlj'  applied  to  Millbank  Prison  now 
pulled  down  ;  see  6  &  7  Vict.  62(i  now  repealed. 


THE   CRIMINAL    LAW  121 

Article  172 

poundbreach. 

^  Eveiy  one  is  guilty  of  a  misdemeanour  who  forcibly  rescues 
goods  distrained,  or  rescues  cattle  by  breach  of  the  pound 
where  they  have  been  placed. 


Article  173. 

transports  or  persons  sentenced  to  penal  servitude 
being  at  large. 

-Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  be  kept  in  penal  servitude  for  life 

(a.)  who,  having  been  sentenced  to  be  kept  in  penal  servi- 
tude, either  for  life  or  for  any  number  of  years,  is  afterwards 
at  large  within  any  part  of  His  Majesty's  dominions,  without 
some  lawful  cause,  before  the  expiration  of  the  term  for 
which  he  was  ordered  to  be  kept  in  penal  servitude ;  or 

(h.)  -'who  aids,  abets,  counsels,  or  procures  the  commission 
of  the  offence  defined  in  clause  {a.). 


Article  174. 

MISPRISION   OF   treason. 

*  Every  one  who  knows  that  any  other  person  has  com- 
initlcil  high  treason,  and  does  not  within  a  i-easonabic  tinic 
give  infcjnnation  thereof  to  a  judge  of  assize,  or  a  justice  of 
the  peace,  is  guilty  of  misprisi(jn  (jf  treason,  and  must  upon 

'  See  1  Ru«Hell  (Jr.  'tVA),  2  CliittyK  (Jrim.  Law,  p.  'JO.S,  aii<l  tlie 
autlioritieH  (pujled  in  Note  (a.;  p.  :i05.  It  Ih  douhlful  wlutlier  pound- 
lireaeh  is  uii  olFeiice  wlien  it  \h  unaccoiiipanied  \>y  a  Itieacli  ot"  the  peace. 

-'  5  Geo.  4,  c.  «4,  M.  11.  I'liiiiHlmieiit  altered  Ijy  1  k  fi  Will.  ),  ,■.  i;;. 
Draft  Gixle,  h.   l.'^O. 

*  4  k  r,  Will.  4,  e.  67. 

*  I  MawkinM,  1*.  ('.  (iO.  Ah  to  puiiiHliiii«ii(,  ii.  (i.'iO  ;  I  Male,  1*.  C. 
371-4.      See  Note  IV.      ( T   l)rafl  Code,  h.    I«. 


122  A    DIGEST   OF 


conviction  thereof  be  sentenced  to  imprisonment  for  life,  and 
to  forfeit  to  the  King  all  his  goods  and  the  profits  of  his  lands 
during  his  life. 

AllTICLE    175. 
MlSI'ltlSlOX    OF    FEI.ONV. 

^  Every  one  who  knows  thiit  any  other  person  has  com- 
mitted felony  and  conceals  or  procures  the  concealment 
thereof,  is  guilty  of  misjjrision  of  felony  which,  though 
formerly  a  felony,  is  now  a  misdemeanour. 

As  to  the  punishment  see  ante,  Ai't.  2.3.- 

Article  176. 

agreement  not  to  prosecute. 

^  Every  one  commits  a  misdemeanour  who,  in  respect  of 
any  valuable  consideratioii,  enters  into  an  agreement  not  to 
prosecute  any  person  for  felony,  or  to  show  favour  to  any 
person  in  any  such  prosecution. 

Article  177. 

compounding  penal  action.s. 

*  Every  one  commits  a  misdemeanour,  who,  having  brought, 
or  under  colour  of  bringing,  an  action  against  any  person 
under  any  penal  statute  in  order  to  obtain  from  him  an}' 
penalty,  compounds  the  said  action  without  order  or  consent 
of  the  Court  p  whether  anj^  offence  has  in  fact  been  com- 
mitted or  not]. 

1  Hawkins,  P.  C.  73.     See  Note  IV. 

-  The  punishment  was  formerly  provided  by  3  Edw.  I,  c.  9  ;  but  this 
Statute  was  repealed  by  50  &  51  Vict.  c.  55,  s.  39. 

3  1  Hale,  P.  C.  619.  Precedents  of  indictment,  2  Chitt.  Crim.  Law, 
219.  It  is  not  necessary  to  allege  that  the  defendant  did  actually  de.sist 
from  prosecuting.     B.  v.  Biinjeax,  1885,  16  Q.  B.  D.  141. 

•*  18  Eliz.  c.  5,  ss.  4,  5  (very  much  compressed).  The  punishment  was 
the  pillory,  but  see  56  Geo.  3,  c.  138,  s.  2  now  repealed.  See  also  R.  v. 
Southtrton,  1805,  6  Ea.  126  ;  R.  v.  Ootley,  1805,  Russ.  &  Ry.  84. 

5  R.  V.  Bt-tt,  1840,  2  Moo.  C.  C.  124. 


THE   CRIMIKAL   LA]V  123 


PART  IV 


ACTS  INJURIOUS  TO  THE  PUBLIC  IN  GENERAL. 


CHAP.  XVI. — Undefined  Misde- 

ME.4N0CRS. 

CHAP.  XVII. — Offences  ag.^inst 
Religion. 


CHAP.  XVIII. — Offences  against 

Morality. 
CHAP.  XIX. — Common  Nuisances 

— Disorderly  Houses. 
CHAP.  XX.— Vagrancy. 


CHAPTER   XVI 

UNDEFINED  M IS  DEM E A  NO  UBS 

Article  178. 

acts  involving  public  mischief. 

^  Acts  deemed  to  be  injurious  to  the  public  have  in  some 
instances  been  held  to  be  misdemeanours,  because  it  appeared 
to  the  Court  before  which  they  were  tried  that  there  was  an 
analogy  between  such  acts  and  other  acts  which  had  been 

•  See  3  Hist.  Cr.  Law,  359-60,  and  2  Hist.  Cr.  Law,  197-9;  see  the 
whole  of  chapter  i.  of  Sir  W.  Erie's  worli  on  Trade  Unions,  pp.  1-54, 
particularly  pp.  48-53  ;  al.so  his  account  of  H.  v.  Kowlandu  and  R.  v. 
Dnjfield,  IWid.  81-7.  Wright  on  the  Law  of  Conspiracy  sliould  be 
studied,  and  contrasted  with  this.  As  to  ottences  relating  to  tiie  adnunis- 
tration  of  justice,  see  5th  Rep.  C.  L.  C.  pasxiiit,  liut  particularly  p.  '2'.),  &c. , 
p.  50,  &c.,  and  A',  v.  Oj»\,  1670,  1  Saund.  301  ;  A',  v.  Jiii,-/,  fsoo,  8 T.  R. 
585,  and  other  cases  there  cite<l.  As  to  public  otlicers,  /(".  v.  Ihmhridijt, 
1783,  2'1  St.  Tr.  I.  After  quoting  the  judgment  of  Willes,  .J.  (tiie  col- 
league of  Lord  Mansfield),  in  Millar  v.  Taylor,  4  Burr,  at  p.  '231*2,  to 
the  effect  that  "justice,  moral  fitness,  and  public  convenience,  when 
applied  to  a  new  subject,  make  common  law  without  a  precedent," 
i'f)lUK,k,  C.  li. ,  said,  "I  entirely  agree  with  tlic  spirit  of  this  passage  s«» 
far  as  it  regards  tlie  repressing  what  is  a  public  evil  and  preventing  what 
would  lH:come  a  general  mischief;  but  I  think  there  is  a  wide  ditl'erence 
Ijctween  protecting  the  community  against  a  new  source  of  danger  and 
creating  a  new  right.  I  think  tin;  (.'ommon  Law  is  quite  competent  to 
proiiouiK  !■    anything    to    be   illfgal  wliicli    is  manifestly  against  I  In-  public 


124  A    DIGEST   OF 


held  to  be  misdemeanours,  although  such  first  mentioned  acts 
were  not  forbidden  by  any  express  law,  and  although  no 
precedent  exactly  applied  to  them. 

This  has  been  done  especially  in  the  case  of  agreements 
between  more  persons  than  one  to  carry  out  purposes  which 
the  judges  regarded  as  injurious  to  the  })ublic,  in  which 
case  such  acts  have  been  held  to  amount  to  the  offence  of 
conspiracy, 

or  when  they  have  been  done  by  a  public  officei-  in  relation 
to  his  official  duty, 

or  when  they  tended  in  any  way  to  pervert  the  adminis- 
tration of  justice,  or  to  disturb  the  public  peace, 

or  when  the  proceeding  has  been  by  pai'liamentary  im- 
peachment. 

good  ;  but  I  think  the  Common  Law  cannot  create  new  rights,"  &c. , 
Jefftrys  v.  Boosey,  1854,  4  H.  L.  C.  at  p.  936.  As  to  cheats  affecting  the 
public,  see  2  East,  P.  C.  818-822,  and  see  K.  v.  Vrtoneii  1891,  1  Q.  B. 
360  ;  where  an  attempt  to  mislead  a  judicial  tribunal  whicii  miglit  be 
called  into  existence,  bj'  the  manufacture  of  false  evidence,  was  held  to  be 
a  misdemeanour. 


THE   CRIMINAL    LAW 


125 


CHAPTER  XVII 


^OFFENCES  AGAINST  BELIGION 


Article  179. 


BLASPHEMY    DEFINED — ALTERNATIVE    DEFINITIONS. 


2  Every  publication  is  said 
tains 

Matter  relating  to  God, 
Jesus  Christ,  the  Bible,  or 
the  Book  of  Common  Prayer, 
intended  to  wound  the  feel- 
ings of  mankind,  or  to  ex- 
cite contempt  and  hatred 
against  the  Church  by  law 
established,  or  to  promote 
immorality. 

Publications  intended  in 
good  faith  to  propagate 
opinions  on  religious  sub- 
jects, which  the  person  who 
publishes    them   regards    as 


to  be  blasphemous  which  con- 

(a.)  A  denial  of  the  truth 
of  Christianity  in  general,  or 
of  the  existence  of  God,  whe- 
ther the  terms  of  such  publi- 
cation are  decent  or  other- 
wise. 

(h.)  Any  contemptuous  re- 
viling or  ludicrous  matter 
relating  to  God,  Jesus  Christ, 
or  the  Bible,  or  the  formu- 
laries of  the  Church  of  Eng- 
land as  by  law  established, 
whatever  may  be  the  occasion 
of    the    publication    thereof, 


'  See  2  Hist.  Cr.  Law,  ch.  xxiv.  298-;396,  and  Draft  Code,  Part  XIL 
-  There  is  authority  for  each  of  these  views,  as  may  Vie  seen  from  a 
collection  of  all  the  cases  on  the  subject  in  Folkard's  Hdition  of  Stnrkie 
on  Lilicl.  f)l3  6*2.'>.  Most  of  the  cases  are  oM,  and  I  do  not  tliink  that, 
in  fact,  any  one  has  been  convicted  of  Idasphemy  in  modern  times  for  a 
mere  decent  expression  of  disbelief  in  Christianity.  Mr.  Starkie  many 
years  ago  wrote,  "A  wilful  intention  to  pervert,  instdl,  an<l  misicail 
others  by  means  of  licentious  and  contumelious  abuse  aj)plied  lo  sacred 
subjects,  or  by  wilful  misrepresentations  or  artful  sopiiistry  calculalid  to 
mislead  the  ignorant  and  unwary,  is  the  <riterion  and  test  of  guilt." 
This  is  the  language  of  a  man  wlu)  means,  but  is  reluctant  to  say  plainly, 
"  ^'ou  nuiy  deny  (.'hristianity  to  be  true,  liut  you  must  do  it  in  a  drceni 
way,  and  with  regard  to  the;  feelings  of  otiuMs."  I^f)rd  Coleridge  allows 
me  to  wiy  that  the  left  hanrl  side  of  the  page  (•f>rre(tly  states  the  law  laid 
down  in  the  last  trial  which  took  |)lace  for  blasphemy.  A',  v.  I'lm/i  i/,  tried 


126  A    DIGEST   OF 


true,   are    not    blasphemous     and  whether  the  matter  pub- 
(within  the  meaning  of  this     lished  is,  or  is  not,  intended 
definition)     merely    because     in  good  flxith  as  an  argument 
their  publication  is  likely  to     against     any      doctrine      or 
wound  the  feelings  of  those     opinion,  unless  the  publica- 
who  believe  such  opinions  to     tion  is  made  under  circum- 
be    false,    or    because    their     stances  constituting  a  lawi'ul 
general  adoption  might  tend     excuse. 
by  lawful    means   to   altera- 
tions in  the  constitution  of 
the    Church    by    law    esta- 
blished. 

Everyone  who  publishes  any  blasphemous  document  is 
guilt}'  of  the  misdemeanour  of  publishing  a  blasphemous  libel. 

Every  one  who  speaks  blasphemous  words  is  guilty  of  the 
misdemeanour  of  blasphemy. 

Article   180. 

heresies. 

^  Every  person  who  is  guilty  of  atheism,  blasphemy, 
heresy,  schism,  or  any  other  damnable  doctrine  or  opinion 
(-not  punishable  at  common  law),  may  upon  conviction 
thereof  before  a  competent  ecclesiastical  Court,  be  directed 


at  the  IJodmin  Summer  Assizes,  in  1857,  before  Coleridge,  J.  Lord 
Coleridge  uas  counsel  in  that  case.  For  the  reasons  given  in  the  chapter 
on  offences  against  religion  in  my  History  of  the  Criminal  Law,  Vol.  II. 
p.  474,  I  am  now  unable  to  agree  with  the  milder  view  of  the  law.  See 
Draft  Code,  s.  141.  In  7?.  v.  Ranv<ty  and  ors,  188.S,  15  Cox  C.  C.  231, 
48  L.  T. ,  73.3,  a  case  of  blasphemous  libel  tried  before  Lord  Coleridge,  he 
directed  the  jury  according  to  the  doctrine  stated  in  the  left-hand  column. 
His  summing-up  was  puldished  by  Stevens  and  Sons  in  1883.  I  wrote 
an  article  on  the  subject  maintaining  my  own  view  in  the  Forfjiir/hth/ 
Revieii;  for  March,  1884,  and  Mr.  Aspland  afterwards  published  an  able 
pamphlet  on  tlie  other  side  of  the  <|uestion.  It  did  not  convince  me.  It 
has  been  often  suggested,  and  would,  I  think,  be  highly  desirable,  that 
the  ([uestion  should  be  .settled  by  Parliament. 

1  29  Car.  2,  c.  9  ;  53  Geo.  3,  c.  127,  ss.  1,  2,  3  ;  and  see  Phillimore, 
Eccl.  Law,  1075-7.  The  excommunication  and  term  of  imprisonment  is 
signified  to  the  King  in  Chancery,  whereupon  a  writ  issues  "  de  excom- 
municato capiendo." 

2  Phillimore  v.  Machon,  1876,  1  P.  D.  481  ;  Co.  Litt.  96  b, 


THE    CJilMWAL    LAW  127 

to  recant  the  same  and  to  do  penance  therefor,  and  to  be  ex- 
communicated and  imprisoned  for  such  term,  not  exceeding 
six  months,  as  the  Court  pronouncing  the  sentence  of  ex- 
communication may  direct. 

Article  181. 
denying  truth  of  christianity,  &c. 

^  Every  one  commits  a  misdemeanour  and  upon  conviction 
thereof  is  liable  to  the  punishments  hereinafter  mentioned, 
who  having  been  educated  in,  or  at  any  time  having  made 
profession  of,  the  Christian  religion  within  this  reahn,  by 
writing,  printing,  teaching,  or  advised  speaking,  denies  the 
Christian  religion  to  be  true,  or  the  holy  scriptures  of  the 
Old  and  New  Testament  to  be  of  Divine  authority. 

For  the  first  offence  the  offender  must  be  adjudged  in- 
capable and  disabled  in  law,  to  all  intents  and  purposes 
whatsoever,  to  have  or  enjoy  any  office  or  employment, 
ecclesiastical,  civil  or  military,  or  any  part  in  them,  or 
any  profit  or  advantage  appertaining  to  them,  and  if  at  the 
time  of  his  conviction  the  person  convicted  enjoys  or  pos- 
sesses any  office,  place,  or  employment,  such  office,  place,  or 
employment  becomes  -  void. 

Upon  a  second  conviction  for  all  or  any  of  the  said  crimes 
the  offender  is  from  thenceforth  disabled  to  sue,  prosecute, 
plead,  or  use  any  action  or  information  in  any  Court  of  law 
or  equit}',  or  to  be  guardian  of  any  child,  or  executor  or 
administrator  of  any  person,  or  capable  of  any  legacy  or  deed 
of  gift,  or  to  bear  any  office,  civil  or  military,  or  benefice 
ecclesiastical,  for  ever  within  this  realm,  and  must  also  suffer 
imprisonment  for  the  space  of  three  years  from  the  time  of 
such  conviction. 

Provided  that  any  person  convicted  of  any  of  the  afoicsaid 
crinif's  for  the  first  time  shall   ])<•  dischargid  froni  all  iifiial- 

'  9  Will,  '.i,  c.  3"i,  lis  altered  in  favour  of  pcMHoiis  (Itiiying  llie  tloctriiio 
of  lh<;  Holy  Trinity  by  53  (Jeo.  3,  c.  160,  which  wuh  aftc-rwanls  repealed, 
but  its  effect  remainH,  see  3()  fc  37  V'ict.  <;.  ill. 

*  "  Shall  l»c  and  is  hereby  declared  void." 


128  A    DIGEST   OF 

ties  and  disabilities  incurred  by  such  conviction,  upon  his 
acknowledgment  or  renunciation  of  such  offence  or  erroneous 
opinions  in  the  same  court  where  he  was  convicted  within 
four  months  after  his  conviction. 


Article  182. 

depraving  the  lord's  supper. 

^  Everyone  commits  a  misdemeanour  who  depraves,  despises, 
or  contemns  the  sacrament  of  the  supper  and  table  of  the 
Lord,  in  contempt  thereof  by  any  contemptuous  words,  or 
by  any  words  of  depraving,  despising,  or  reviling,  or  by 
advisedly  in  any  other  wise  contemning,  despising  or  reviling 
the  said  sacrament. 

Article  183. 
depraving  the  book  of  common  prayer. 

^  Every  one  commits  a  misdemeanour  and  is  liable  upon  con- 
viction thereof  to  the  punishments  hereinafter  mentioned, 
who  does  any  of  the  following  things :  that  is  to  say, 

(a.)  who,  in  any  interlude,  play,  song,  rhymes,  or  other 
open  words,  declares  or  speaks  anything  in  derogation, 
depraving,  or  despising  of  the  Book  of  Common  Prayer,  or  of 
anything  therein  contained,  or  any  part  thereof:  or 

(b.)  who  by  open  fact,  deed,  or  open  threatenings,  compels, 
causes,  or  otherwise  procures  or  maintains  any  parson,  vicar, 

•  1  Edw.  6,  c.  1,  s.  1,  applied  to  the  present  Book  of  Coiniiion  Prayer 
by  14  Car.  2,  c.  4,  s.  20.  I  have  retained  these  and  the  following  provi- 
sions because,  though  they  are  practically  obsolete,  they  relate  to  acts 
which  might  still  be  done.  But  I  have  not  thought  it  worth  while  to  en- 
cumber the  book  with  the  statutes  of  pnumunire,  whicii,  with  hardly  an 
exception,  are  only  historical  monuments  of  bygone  political  and  religious 
conflicts,  imposing  penalties  on  acts  which  it  is  barely  conceivable  that  any 
one  should  do  in  tlie  present  state  of  society.  The  subject  is  treated  fully 
in  the  7th  Report  of  the  Criminal  Law  Commissioners,  pp.  37-45.  The 
offences  arc  appealing  to  Rome  from  any  of  the  King's  Courts  (24  Hen.  8, 
c.  12)  ;  asserting  that  Parliament  has  a  legislative  authority  without  the 
Crown  (13  Car.  2,  c.  1)  ;  and  some  others. 

'^  I  Eliz,  c.  2,  s.  3,  applied  to  the  present  Book  of  Connnon  Prayer  by 
14  Car.  2,  c.  4,  s.  20. 


THE   CRIMINAL   LAW  129 

or  other  minister,  in  any  cathedral  or  parish  church  or 
chapel,  or  in  any  other  place,  to  sing  or  say  any  common  or 
open  prayer,  or  to  minister  any  sacrament  otherwise  or  in 
any  other  manner  or  form  than  is  mentioned  in  the  said  book  ; 

(c.)  who  by  any  of  the  said  means  unlawfully  interrupts 
and  lets  any  parson,  vicar,  or  other  minister  in  an}^  cathedral 
or  parish  church,  or  chapel,  in  singing  or  saying  common  or 
open  prayer,  or  ministering  the  sacraments,  or  any  of  them, 
in  the  manner  mentioned  in  the  said  book. 

For  the  first  offence  the  offender  must  be  fined  one  hun- 
dred marks,  and  in  default  of  payment  within  six  weeks  after 
his  conviction  must  be  imprisoned  for  six  months. 

For  the  second  offence  the  offender  must  be  fined  four 
hundred  marks,  and  in  default  of  payment  as  aforesaid  must 
be  imprisoned  for  twelve  months. 

For  the  third  offence  the  offender  must  forfeit  to  the 
King  all  his  goods  and  chattels  and  be  imprisoned  for  life. 

Article  184. 
clergymen  refusing  to  use  the  book  of  common  prayer. 

^  Every  one  commits  a  misdemeanour  and  is  liable  upon 
conviction  thereof  to  the  punishments  hereinafter  mentioned, 
who,  being  a  parson,  vicar,  or  other  minister  whatsoever,  that 
ought  or  should  sing  or  say  common  prayer  according  to  the 
Book  of  Common  Prayer, 

(a.)  refuses  to  use  the  said  common  prayer,  or  to  minister 
the  sacrament,  in  such  cathedral  or  parish  church,  or  other 
place,  as  he  should  use  or  minister  the  same ;  or 

{h)  uses,  wilfully  and  obstinately  standing  in  the  same, 
any  other  rite,  ceremony,  order,  or  form  of  mass,  openly  or 
privily,  or  matins,  evensong,  administration  of  the  sacrament, 
or  other-  open  prayer  than  is  mentioned  and  set  forth  in  the 
said  book  ;  or 

'  ti  k  :{  K.lw.  G,  c.  1  ;  14  Cur.  2,  c.  4,  h.  20,  an<l  see  1  Kliz.  i:  2,  h.  2, 
which  hlightly  varicH  tlie  penalty  on  one  point. 

'^  By  open  prayer  "  iH  meant  that  prayer  which  is  for  othein  to  como 
unto  or  hear,  either  in  common  churchcH,  or  private  chaj)elH,  or  onitoricH, 
C')mmonly  called  the  Service  of  the  rhiirch."      2  k  •'<  K'lw.  (>,  c.   1. 

Iv. 


130  A    DIGEST   OF 


(c.)  preaches,  declares,  or  speaks  anything  in  derogation  or 
depraving  of  the  said  book,  or  anything  therein  contained,  or 
of  any  part  thereof 

For  the  first  offence  the  offender  must  forfeit  to  the  King 
one  year's  profit  of  such  of  his  benefices  as  His  Majesty 
appoints,  and  be  imprisoned  for  six  months,  whether  he  has 
any  benefice  or  not. 

For  the  second  offence  the  offender  must  be  deprived  ispo 
facto  of  all  his  spiritual  promotions,  and  be  imprisoned  for  a 
year,  and  if  he  has  no  promotion  he  nmst  be  imprisoned  for 
life. 

For  the  third  offence  the  offender  must  be  imprisoned  for  life. 

Article  185. 
disturbing  public  worship. 

(a.)  ^  Every  one  commits  a  misdemeanour  and  is  liable,  upon 
conviction  thereof,  to  a  fine  of  forty  pounds,  who  wilfully 
and  maliciously  or  contemptuously  disquiets  or  disturbs  any 
meeting,  assembly,  or  congregation  of  persons,  ^  lawfully 
assembled  for  religious  worship,  or  in  any  way  disturbs, 
molests,  or  misuses  any  preacher,  teacher,  or  person  officiating 
at  such  meeting,  assembly,  or  congregation,  or  any  person  or 
persons  there  assembled. 

(&.)  ^  Every  one  who  willingly  and  of  purpose  maliciously 
or  contemptuously  comes  into  any  cathedral  or  parish  church 
or  other  congregation  *  permitted  by  this  Act  and  disquiets 
or  disturbs  the  same  or  misuses  any  preacher  or  teacher  may 
be  required  by  one  justice  to  find  two  sureties  for  fifty  pounds, 
and  in  default  may  be  committed  to  Quarter  Sessions 
and  on  conviction  of  the  offence  there  may  be  fined  twenty 
pounds. 

1  52  Geo.  3,  c.  155,  s.  12.     Draft  Code,  s.  143. 

2  This  Act  was  originally  confined  to  all  Protestant  Dissenters  other 
than  Quakers,  but  was  extended  to  all  persons  lawfully  assembled  for  reli- 
gious worship  by  9  &  1 0  Vict.  c.  59,  s.  4. 

3  1  Will.  &  Mary,  c.  18,  s.  15. 

*  This  Act  originally  exempted  persons  taking  oaths  under  1  Will.  & 
Mary,  c.  1,  and  30  Car.  2,  stat.  2,  c.  1,  from  penalties  for  holding  services, 
&c.  ;  this  part  is  now  repealed. 


THE    CRIMINAL    LAW  131 


CHAPTER  XVIII 

1  OFFENCES  AGAINST  MORA  LIT  Y 

Article  18G. 

SODOMY. 

-  Every  one  commits  the  felony  called  sodomy,  and  is  liable 
upon  conviction  thereof  to  penal  servitude  for  life,  who 

(a.)  carnally  knows  any  animal ;  or, 

(h.)  being  a  male,  carnally  knows  any  man  or  any  woman 
(per  anum). 

Any  person  above  the  age  of  fourteen  years  who  permits 
himself  or  herself  to  be  so  carnally  known  as  aforesaid  is  a 
principal  in  the  first  degree  in  the  said  felony. 

Article  187. 

attempt  to  commit  sodomy. 

^  Every  one  who  attempts  to  commit  sodomy  is  guilty  of  a 
misdemeanour,  and  is  liable  upon  conviction  thereof  to  ten 
years  penal  servitude.     (Cf.  Art.  263.) 

Article  188. 
outrages  on  decency. 

*  Any  male  person  is  guilty  of  a  misdemeanour  and  is  liable 
(in  conviction  thereof  to  two  years  imprisonment  with  hard 
labour,  who,  in  public  or  private,  commits,  or  is  a  i)arty  to 
the  commission  of,  or  procures  or  attempts  to  procure  the 

ornmi.ssion  by  any  male  person  of,  any  act  of  gross  indecency 
with  another  male  person. 

'  Ah  to  rape  uii<l  (jllicr  offences  of  tlie  .siime  kiiul,  .'^eo  ('li;i|i.  XXN'III., 
Ii>ml,  \t.  ii(J7. 

'^  ti4  &  'I't  Vict.  c.  100,  8.  «1  ;  nee  cuseH  in  1  Hush.  (^r.  H7!>-M'J.  See 
1  HiHt.  O.  Law,  429-30.  Ah  to  carnal  knowledge  hcc  Article  2fi!(,  j>oi*l. 
Draft  Oxle,  h.  144. 

3  24  Hi.  2.j  Vict.  c.  100,  k.  (i2.      Draft  Code,  rf.   14... 

•  4H  &  4y  Vict.  c.  m,  H.  11. 

K    -1 


132  A    DIGEST   OF 


Article  189. 

ecclesiastical  censures  for  immorality. 

^  Every  person  who  commits  incest,  adultery,  fornication, 
or  any  other  deadly  sin  (not  punishable  at  common  law),  is 
liable  upon  conviction  thereof  in  an  ecclesiastical  Court  to 
be  directed  to  do  penance,  and  to  be  excommunicated,  and 
to  be  imprisoned  for  such  term  not  exceeding  six  months  as 
the  Court  pronouncing  the  sentence  of  excommunication  may 
direct. 

Article  190. 
public  indecencies. 

-  Every  one  commits  a  misdemeanour  who  does  any  grossly 
indecent  act  in  any  open  and  public  place  in  the  presence  of 
more  persons  than  one  ;  ^  but  it  is  uncertain  whether  such 
conduct  in  a  public  place  amounts  to  a  misdemeanour  if  it  is 
done  when  no  one  is  present,  or  in  the  presence  of  one  person 
only. 

*  A  place  is  public  within  the  meaning  of  this  Article  if  it 
is  so  situated  that  what  passes  there  can  be  seen  by  any 
considerable  number  of  persons  if  they  happen  to  look. 

1  13  Edw.  I,  "  Circumspecte  agatis  "  ;  53  Geo.  3,  c.  127,  ss.  1-3  ;  and 
see  Phillimore's  Eccl.  Law,  1081,  1442  ;  also  PhiJlimore  v.  Machon,  1876, 
1  P.  D.  481  ;  Co.  Litt.  96  b.  Incest,  thoiigh  not  mentioned  in  the  statute 
"  Circumspecte  agatis,"  is  the  only  offence  which  in  tliese  days  is  ever 
prosecuted  under  the  law  here  stated.  Such  a  prosecution  occurred  in 
modern  times  in  the  Bishop  of  Chichester's  Court.  See  2  Hist.  Cr.  Law, 
396-429. 

2  1  Hawk,  P.  C.  358.  The  acts  x-ef erred  to  are  principally  acts  of  open 
indecency,  but  an  act  scanrlaloiisly  profligate,  though  not  in  this  sense 
openly  indecent,  might  in  some  cases  be  a  misdemeanour,  as  e.g.,  selling 
a  wife.  Seedier  Lord  Mansfield  in  R.  v.  Delaval,  1762,  3  Burr.  1438.  If 
the  act  done  is  a  public  and  indecent  exposure  of  the  person  the  offender 
may  on  conviction  be  sentenced  to  hard  labour  ;  14  &  15  Vict.  c.  100, 
s.  29,  and  see  Article  214  (d.),  (e.).      Draft  Code,  s.  146. 

3  Elliot'. ■<  Case,  1861,  L.  &  C.  103. 

■»  WebVs  Case,  1848,  1  Den.  338  ;  R.  v.  Holmes,  1853,  D.  &  P.  207  ; 
R.  V.  Orchard,  1848,  3  Cox,  C.  C.  248  ;  R.  v.  Roiiverard,  stated  by  Parke, 
B. ,  in  R.  V.  Webb,  supra  »t  p.  344. 


THE    CRIMINAL    LAW  133 


Illustrations. 

The  following  are  instances  of  public  places  : 

^  The  inside  of  an  omnibus. 

-  The  roof  of  a  house  visible  from  the  back  windows  of  several 
houses. 

^  The  inside  of  a  urinal  open  to  the  public,  and  by  the  side 
of  a  footpath  in  Hyde  Park. 

*  The  inside  of  a  booth  on  Epsom  racecourse,  which  the  public 
were  in\dted  to  enter. 

^  A  place  out  of  sight  of  the  public  footway  where  people  had 
no  legal  right  to  go,  but  did  habitually  go  without  interference. 


Article  191. 
obscene  publications. 

"Every  one  commits  a  misdemeanour  who  without  justifi- 
cation, 

(a.)  publicly  sells,  or  exposes  for  public  sale  or  to  public 
view,  any  obscene  book,  print,  picture,  or  other  indecent 
exhibition  ;  ^  or  any  publication  recommending  sexual  im- 
morality, even  if  the  recommendation  is  made  in  good  faith 
and  for  what  the  publisher  considers  to  be  the  public  good  ; 
or 

(6.)  publicly  exhibits  any  disgusting  object. 

Any  person  convicted  of  the  offence  defined  in  clause  (a.) 
may  be  sentenced  to  hard  labour. 

'  7?.  V.  Holmes,  1853,  D.  &  P.,  207. 

-   ThallmaiCn  Ccuic,  I8G3,  L.  &  C.  326. 

3  R  V.  Harris,  1871,  1  C.  C.  R.  282. 

«  li  V.  Saunders,  1875,  1  Q.  B.  D.  15. 

6  li.  V.   Wdlard,  1884,  14  Q.  B.  I).  63. 

«  Note  V.  ;  Strange,  790  ;  and  see  20  &  21  Vict.  c.  83,  s.  1  ;  14  &  15 
Vict.  c.  100,  8.  29  ;  Starkie  (by  Folkanl),  630-637.     Draft  Code,  s.  147. 

^  These  words  are  added  in  reference  to  tlie  case  of  /'.  v.  Bradlanijh, 
tried  before  Cookburn,  C.J.,  18  June,  1877.  I  have  not  seen  any  report 
of  the  trial  itself.  Proceedings  in  error  on  tiie  ground  that  tiic  indictment 
was  defective  were  taken  in  1878  and  are  reported  in  lirad/nwi/i  v.  /?. , 
1878,  3  Q.  B.  D.  607.  The  jury  found  that  the  work  pioseculed  cailoil 
the  "Fruits  of  Philosojihy  "  was  jiultlislied  in  good  faith  for  the  puldic 
v;o<jd,  and  that  it  recornincndcd  immoral  jnacticcs.  Itapjicared  in  evidfriicc 
that  it  was  not  obscene;  in  the  sensf;  of  l»eing  calculated  or  intcndcil  U» 
excite  passion. 


134  A    DIGEST   OF 


(Submitted.) — A  person  is  justified  in  exhibiting  disgust- 
ing objects,  or  publishing  obscene  books,  papers,  writings, 
prints,  pictures,  drawings,  or  other  representations,  if  their 
exhibition  or  j)ublication  is  for  the  public  good,  as  being 
necessary  or  advantageous  to  religion  or  morality,  to  the 
administration  of  justice,  the  pursuit  of  science,  literature,  or 
art,  or  other  objects  of  general  interest  ;  but  the  justification 
ceases  if  the  publication  is  made  in  such  a  manner,  to  such 
an  extent,  or  under  such  circumstances,  as  to  exceed  what 
the  public  good  requires  in  regard  to  the  particular  matter 
published. 

niiistrations. 

(1.)  ^  A  exhibits  for  money,  to  all  comers,  an  unnatural  and 
monstrous  birth.      A  commits  a  misdemeanour. 

B  exhibits  a  similar  object  to  students  of  medicine  only.  B 
does  not  commit  a  misdemeanour. 

(2.)'-  A,  a  bookseller,  publishes  the  work  of  a  casuist,  which 
contains    amongst  other  things  obscene  matter.      The    work    is 


1  Harring  v.   Walrond,  1681,  1  Russ.  Cr.  436. 

^  The  second  paragraph  of  this  illustration  is  based  upon  R.  v.  Hichlin, 
1868,  L.  R.  3  Q.  B.  360  ;  and  see  Steele  v.  Brannan,  1872,  L.  R.  7  C.  R 
261.  The  first  part  is  merely  my  suggestion  as  to  what  ouglit  to  be  held 
to  be  the  law  if  the  question  should  arise,  but  the  point  cannot  be  called 
clear.  Keating,  J. ,  referred  in  passing  to  the  (]uestion  in  Steele  v.  Brannan, 
at  pp.  269,  270,  but  expressed  no  opinion  upon  it.  I  confine  this  article 
to  obscenity  because  I  have  found  no  authority  for  the  proposition  that 
the  publication  of  a  work  immoral  in  tlie  wider  sense  of  the  word  is  an 
offence.  A  man  might  with  perfect  decency  of  expression,  and  in  complete 
good  faith,  maintain  doctrines  as  to  marriage,  the  I'elation  of  the  sexes, 
the  obligation  of  truthfulness,  the  nature  and  limits  of  the  rights  of  pro- 
perty, &c. ,  which  woidd  be  regarded  as  highly  immoral  by  most  people, 
and  yet  (I  think)  commit  no  crime.  Obscenity  and  immorality  in  this 
wide  sense  are  entirely  distinct  from  each  otlier.  The  language  used  in 
reference  to  some  of  the  cases  might  throw  doubt  on  this,  but  I  do  not 
think  any  instance  can  be  given  of  the  punishment  of  a  decent  and  bond 
fide  expression  of  opinions  commonly  regarded  as  immoral.  I  leave  this 
note  unaltered,  but  since  it  was  written  the  case  cited  above  of  R.  v. 
Bradlavf/h  may  be  considered  to  have  gone  some  way  towards  establishing 
a  different  principle,  and  to  have  invested  juries  to  a  certain  extent  with 
the  powers  of  ex  post  facto  censors  of  the  press  so  far  as  sucii  publications 
on  the  relations  of  the  sexes  are  concerned.  I  think  that  juries  ought  to 
exercise  such  a  power  with  the  greatest  caution  wlien  a  man  writes  in 
good  faith  on  a  subject  of  great  interest  and  open  to  much  difference  of 
opinion,  and  when  no  indecency  of  language  is  used,  except  such  as  is 
necessary  to  make  the  matter  treated  of  intelligible. 


THE    CRIMINAL    LAW  135 


published  in  Latin,  cand  appears  from  the  circumstances  of  its 
publication  to  be  inteiuled  for  bond  fide  students  of  casuistry 
only.      A  has  not  commited  a  misdemeanour. 

B  extracts  the  obscene  matter  from  the  work  so  published, 
translates  it  into  English,  and  sells  it  as  a  pamphlet  about  the 
streets  for  the  purpose  of  throwing  odium  upon  casuists.  B  has 
committed  a  misdemeanour. 


Article  191a. 
sending  indecent  letters. 

^  Every  one  is  guilty  of  a  misdemeanour  and  is  liable  to  im- 
prisonment with  hard  labour  for  twelve  months  who  sends  or 
attempts  to  send  a  postal  packet  which 

(a.)  incloses  any  indecent  or  obscene  print,  painting, 
photograph,  lithograph,  engraving,  book,  or  card,  or  any 
obscene  article  similar  to  the  above  or  not ;  or 

(5.)  has  on  such  packet  or  on  the  cover  thereof  any  words, 
marks,  or  designs  of  an  indecent,  obscene  or  grossly  offensive 
character. 

Article  192. 

procuring  the  marriage  of  parent  of  a  bastard. 

^  Every  officer  of  a  union,  parish  or  place  is  guilty  of  a 
misdemeanour  who  endeavours  to  induce  any  person  to  contract 
a  marriage  by  a  threat  or  promise  respecting  any  application 
to  be  made  or  any  order  to  be  enforced  with  respect  to  the 
maintenance  of  any  bastard  child. 

Article  193. 

'unlawfullv   dkkiling  women. 

*  Every  one  commits  a  misdemeanour  and  is  liable  upon  con- 
viction therecjf  to  two  years  imprisonment  with  hard  lal)niir 
who, 

'  47  &  4H  Vict.  c.  7<i,  H.  4. 
M  &:  «  Vict.  c.  101,  8.  8. 

:•  48  &  49  Vict.  c.  09.  (a,),  (^.),  (r.),  (d.)  reprcBont  h.  'J  ;  (..),  (/.)  mid 
(.7. )  «.  3. 

•    Draft  Code,  s.   14S. 


136  A    DIGEST   OF 


(a.)  procures  or  attempts  to  procure  any  girl  or  woman 
under  twenty-one  years  of  age,  not  being  a  common  prostitute, 
or  of  known  immoral  character,  to  have  unlawful  carnal 
connexion,  either  within  or  without  the  King's  dominions, 
with  any  other  person  or  persons ;  or 

(b.)  procures  or  attempts  to  procure  any  woman  or  girl  to 
become,  either  within  or  without  the  King's  dominions,  a 
common  prostitute ;  or 

(c)  procures  or  attempts  to  procure  any  woman  or  girl  to 
leave  the  United  Kingdom,  with  intent  that  she  may  become 
an  inmate  of  a  brothel  elsewhere ;  or 

(d)  procures  or  attempts  to  procure  any  woman  or  girl  to 
leave  her  usual  place  of  abode  in  the  United  Kingdom  (such 
place  not  being  a  brothel),  with  intent  that  she  may,  for  the 
purposes  of  prostitution,  become  an  inmate  of  a  brothel  within 
or  without  the  King's  dominions  ;  or 

(e)  by  threats  or  intimidation  procures  or  attempts  to 
procure  any  woman  or  girl  to  have  any  unlawful  carnal 
connexion,  either  within  or  without  the  King's  dominions  ; 
or 

(/)  ^y  ^^1^^  pretences  or  false  representations  procures 
any  woman  or  girl,  not  being  a  common  prostitute  or  of 
known  immoral  character,  to  have  any  unlawful  carnal  con- 
nexion, either  within  or  without  the  King's  dominions ;  or 

(g)  applies,  administers  to,  or  causes  to  be  taken  by  any 
woman  or  girl  any  drug,  matter,  or  thing,  with  intent  to 
stupefy  or  overpower  so  as  thereby  to  enable  any  person  to 
have  unlawful  carnal  connexion  with  such  woman  or  girl. 


Article  194. 

householders  permitting  defilement  of  girls  on  their 

premises. 

^  Every  person,  being  the  owner  or  occupier  of  any  premises, 
or  having,  or  acting  or  assisting  in,  the  management  or  control 

•   48  &  49  Vict.  c.  69,  s.  6. 


THE    CRIMINAL    LAW  137 

thereof,  is  guilty  of  felony,  and  is  liable  to  penal  servitude  for 
life,  who 

induces  or  knowingly  suffers  any  girl  under  the  age  of 
thirteen  years  to  resort  to  or  be  in  or  upon  such  premises  for 
the  purpose  of  being  unlawfully  and  carnally  known  by  any 
man,  whether  such  carnal  knowledge  is  intended  to  be  with 
any  particular  man  or  generally.^ 

'^  Every  such  person  as  aforesaid  who  commits  any  such 
offence  as  aforesaid  with  respect  to  any  girl  of  or  above  the 
age  of  thirteen  and  under  the  age  of  sixteen  3'ears,  is  guilty 
of  a  misdemeanour,  and  being  convicted  thereof  is  liable  to  be 
imprisoned  for  two  years  with  hard  labour. 

It  is  a  sufficient  defence  to  any  charge  under  this  article  if  it 
is  made  to  appear  to  the  court  or  jury  before  whom  the  charge 
is  brought  that  the  person  so  charged  had  reasonable  cause 
to  believe  that  the  girl  was  of  or  above  the  age  of  sixteen 
vears. 


Article  195. 
conspiracy  to  defile. 

^  Every  one  commits  the  misdemeanour  of  conspiracy  who 
agrees  with  any  other  person  to  induce  any  woman  to  commit 
adultery  or  fornication,  or  to  take  any  woman  from  the  lawful 
custody  of  her  parents,  in  order  to  marry  her  to  any  person 
without  their  consent ; 

(.SuBMi'ri'ED.)  Provided,  that  an  agreement  between  a  man 
and  a  woman  to  commit  fornication  or  adultery,  or  that  the 
woman  shall  leave  the  lawful  custody  of  her  parents  without 
their  consent,  in  order  to  marry  the  man,  is  not  a  conspiracy. 

'  A  father  who  allows  his  ilaughter  living  with  him  to  act  as  a  prosti- 
tute in  his  house  is  within  this  provision.  R.  v.  WebMer,  1SS5,  IG 
Q.  B.  \).  134. 

^  n.  V.  Lord  arty  of  Werk,  1(5S2,  9  St.  Tr.  127  ;  1  Kast,  V.  (,'.  4(50; 
H.  V.  Mtarn,  1851,  2  Den.  7!»  ;  li.  v.  IMaiitl,  1702,  .'{  Hurr.  4:{4.  Draft 
(:o<le.  H.  149. 

»  I  hid. 


138  A    DIGEST   OF 


Article  196. 
preventing  the  burial  of  dead  bodies  and  disinterring 

THEM.^ 

"Everyone  coimnits  a  misdenieanour  who  prevents  the 
burial  of  any  dead  body,  or  who,  without  authority,  disinters 
a  dead  body,  even  from  laudable  motives ;  or 

who,  having  the  means,  neglects  to  bury  a  dead  body  which 
he  is  legally  bound  to  bury,  provided  that  no  one  is  legally 
bound  to  incur  a  debt  for  such  a  purpose ;  or 

^  who  buries  or  otherwise  disposes  of  any  dead  body  on 
which  an  inquest  ought  to  be  taken,  without  giving  notice  to 
a  coroner ;  or 

who,  being  under  a  legal  duty  to  do  so,  fails  to  give  notice 
to  a  coroner  that  a  body  on  which  an  inquest  ought  to  beheld 
is  lying  unburied,  before  such  body  has  putrefied. 

Illustrations. 

(1.)*  A  digs  up  a  dead  body  and  sells  it  for  purposes  of 
dissection.      This  is  a  misdemeanour. 

(2.)^  A,  without  tlie  consent  of  a  dissenting  congregation,  to 
which  a  burial-ground  belonged,  or  of  trustees  having  the  legal 

1  In  B.  V.  Price,  1884,  12  Q.  B.  D.  247,  I  held  that  to  burn  a  dead  body 
instead  of  burying  it  was  not  in  itself  a  misdemeanour,  if  it  was  so  done  as 
not  to  amount  to  a  public  nuisance.  This  decision  is  to  a  certain  extent 
recognised  in  B.  v.  Stephennon,  1884,  13  Q.  B.  D.  331.  There  were  no 
means  of  questioning  it. 

2  R.  V.  Vann,  1851,  2  Den.  325.  Inquests  ought  to  be  held  when  the 
coroner  on  reasonable  grounds  and  in  good  faith  believes  that  the  deceased 
person's  death  was  of  such  a  nature  as  would,  if  true,  justify  the  holding 
of  an  inquest ;  li.  v.  Stephenson,  sixpra.  A  man  is  bound  to  bury  his 
child's  body,  and,  I  suppose,  his  wife's.  In  R.  v.  Vann,  Lord  Campbell 
said,  "A  man  is  bound,  if  he  has  the  means,  to  give  his  child  Christian 
burial."  This  can  hardly  be  a  duty  in  the  case  of  persons  who  are  not 
Christians,  but  probably  "  Christian  "  means  only  decent.  It  appears 
from  R.  V.  Steivart,  1840,  812  A.  &  E.  773,  778,  that  the  person  under 
whose  roof  another  person  dies  is  under  a  legal  duty  to  carry  the  corpse, 
decently  covered,  to  tlie  place  of  burial  if  there  is  no  one  else  who  is  bound 
to  bury  it.     Draft  Code,  s.  158. 

3  1  Russ.  Cr.  620,  7th  Rep.  C.  L.  C.  pp.  50,  51  ;  and  see  K.  v.  Stephenson, 
supra. 

*  R.  V.  Lynn,  1788,  I  Lea,  497- 
6  R.  V.  Sharpe.  1857,  D.  &  B.  160. 


THE    CRIMINAL   LAW  139 

estate  therein,  but  with  tlie  leave  of  the  person  in  charge,  digs 
up  his  mother's  coffin  in  order  to  bury  it  in  his  father's  grave  in 
a  clnircln'ard  some  miles  off.      This  is  a  misdemeanour. 

(3.)  ^  A,  a  gaoler,  refuses  to  deliver  up  for  burial  the  dead 
body  of  a  prisoner  who  had  died  in  gaol  to  the  executors,  on  the 
ground  that  the  deceased  person  owed  him  money.  This  is  a 
misdemeanour. 

1   R.  V.  Scott,  1842,  2  Q.  B.  248  (in  :i  note  to  R.  v.  Fox). 


140  A    DIGEST   OF 


CHAPTER  XIX 
COMMON  NUISANCES— DISORDERLY  HOUSES 

Article  197. 

common  nuisance. 

^  A  COMMON  nuisance  is  an  act  not  warranted  by  law  or  an 
omission  to  discharge  a  legal  duty,  which  act  or  omission 
obstructs  or  causes  inconvenience  or  damage  to  the  public  in 
the  exercise  of  rights  common  to  all  His  Majesty's  subjects. 
It  is  immaterial  whether  the  act  complained  of  is  convenient 
to  a  larger  number  of  the  public  than  it  inconveniences,  but 
the  fact  that  the  act  complained  of  facilitates  the  lawful 
exercise  of  their  rights  by  part  of  the  public  may  show  that 
it  is  not  a  nuisance  to  any  of  the  public. 

Ilhistrations. 

(l.)^An  electric  telegraph  company  without  legal  authority 
erects  a  telegraphic  pole  in  a  permanent  manner  on  the  waste  at 
the  side  of  and  forming  part  of  a  highway,  leaving  room  enough 
for  the  use  of  the  highway,  and  not  affecting  either  tlie  metalled 
road  or  the  footpath,  by  the  side  of  it.  This  is  a  public  nuisance, 
because  a  small  portion  of  space  which  the  public  had  a  legal 
right  to  use  is  obstructed. 

(2.)  ^  A  tramway  laid  down  on  a  high  road  in  such  a  manner 
as  to  obstruct  to  some  extent  the  use  of  the  road  by  common 
carriages  is  a  public  nuisance,  although  it  may  be  convenient  to 
a  large  majority  of  those  who  use  the  road. 

(S.)*  The  public  have  a  right  to  use  the  Tyne  as  a  highway 


1  1  Hawk.  P.  C.  692.  The  question  as  to  the  public  benefit  of  the  act 
complained  of  may  arise  indirectl}'.      Draft  Code,  s.  150. 

^  R.  V.  United  Kingdom  Telegraph  Co.,  1862,  3  F.  &  F.  73. 

3  R.  V.  Train,  1862,  2  B.  &  S.  640. 

*  R.  V.  Russell,  1827,  6  B.  &  C.  566.  I  think  this  is  the  effect  of  the 
case,  which  deserves  careful  study.  It  is  referred  to  in  i?  v.  Train,  but 
I  doubt  whether  it  is  not  misunderstood  there.      Lord  Tenterden  differed 


THE    CRIMINAL    LAW  141 

and  to  anchor  ships  therein  for  a  reasonable  time  to  take  in 
cargoes  of  coal.  A  erects  staiths  and  spouts  at  which  ships 
moored  for  the  purpose  can  take  in  coal,  but  which  prevent  ships 
not  lying  at  them  from  sailing  over  part  of  the  waterway  where 
they  would  otherwise  be  able  to  sail.  The  fact  that  the  arrange- 
ment is  on  the  whole  convenient  with  regard  to  the  public  use 
of  the  river  may  be  considered  by  the  jury  in  deciding  whether 
the  staiths  are  a  nuisance  or  not. 

(4.)  The  non-repair  of  a  public  highway  is  a  public  nuisance. 

(5.)  ^  A  railway  company  makes  a  railway  within  five  yards 
of  an  ancient  public  highway  in  such  a  manner  that  the  locomo- 
tives frighten  the  horses  of  persons  using  the  highway  as  a  car- 
riage road.  The  railway  is  made  and  the  locomotives  used  under 
Acts  of  Parliament,  which  do  not  require  the  railroad  company 
to  screen  the  line  from  the  road.  This  is  not  a  public  nuisance 
because  the  act  done  is  warranted  by  law. 

Article  198. 

common  nuisance  a  misdemeanour. 

'  Every  one  who  commits  any  common  nuisance  is  guilty 
of  a  misdemeanour. 

Article  199. 

punishment  for  keeping  disorderly  houses. 

'  Every  one  who  keeps  a  disorderly  house  commits  a  com- 
mon nuisance,  and  is  liable  upon  conviction  thereof  to  be 


in  it  from  Bayley  and  Holroyd,  JJ.  Of  the  eight  counsel  engaged  seven 
Viccanie  judges.  In  A.  G.  v.  Terry,  1874,  L.  R.  9  Ch.  App.  at  p.  425, 
Jessel,  M.  K.,  disapproved  of  R.  v.  fiit.sscll,  though  lie  appioved  of  the 
d(x;trine  which  I  understand  to  be  laid  down  in  it.  Tlie  turning  point  of 
the  case,  as  I  understand  it,  is  that  the  .ships  anchored  under  the  spouts 
had  a  right  to  anchor  there  for  a  reasonable  time  to  receive  cargo,  and  tliat 
the  spouts  Vjeing  recognised  ))y  statute  could  not  be  regarded  as  in  thcm- 
Kclves  illegal.  The  question  on  which  the  judges  differed  was  whether 
Bayley,  J.,  had  influence<l  the  jury  Ijy  referring  to  the  cf)llateral  advantage 
of  cheapening  coal  in  the  London  market.  Tlie  effect  of  time  in  legalising 
:i  nuisance  is  somewhat  similar.  It  has  not  in  itself  tiiat  effect,  l>ut  the 
fa<jt  that  a  given  .state  of  things  is  of  very  long  standing  may  be  evidence 
that  it  ifl  not  in  fact  a  nuisance  :  see  cases  in  1  Kusa.  C'r.  418-444.  Tlio 
view  taken  by  the  Criminal  Law  CommiBsionorH  is  ratlier  different,  see  7th 
R.-j).  p.  .'i9. 

>   H.  V.  PeuM,  18.32,  4  B.  &  Ad.  30. 

»  Cf.  Draft  Code,  us.  ITA,  2. 

3  -A  «;-.    4    .     114,  H.  1.      Draft  Code,  h.   \r,i 


142  A    DIGEST  OF 


sentenced  to  imprisonment  with  (and  not  without)  hard 
labour. 

^  Any  person  who  appears,  acts,  or  behaves  as  master  or 
mistress,  or  as  the  person  having  the  care,  government,  or 
management  of  any  disorderly  house,  is  to  be  deemed  and 
taken  to  be  the  keeper  thereof,  and  is  liable  to  be  prosecuted 
and  punished  as  such,  although,  in  fact,  he  is  not  the  real 
owner  or  keeper  thereof, 

"  But  the  owner  of  a  house,  conducted  as  a  disorderly 
house  by  a  person  to  whom  he  lets  it  as  a  weekly  tenant, 
is  not  the  keeper  of  the  house  merely  because  he  knows  the 
use  to  which  it  is  put,  and  does  not  give  his  tenant  notice 
to  quit. 

Article  200. 

disorderly  houses. 

The  following  houses  are  disorderly  houses,  that  is  to  say 
common  bawdy  houses,  common  gaming  houses,  common 
betting  houses,  disorderly  places  of  entertainment. 


Article  201. 

common  bawdy  houses. 

^  A  common  bawdy  house  is  a  house  or  room,  or  set  of 
rooms,  in  an}^  house  kept  for  purposes  of  prostitution.  And 
it  is  immaterial  whether  indecent  or  disorderly  conduct  is  or 
is  not  perceptible  from  the  *  outside. 

>  25  Geo.  2,  c.  36,  s.  S  ;  21  Geo.  3,  c.  49,  s.  2. 

-  B.  V.  Barrett,  1862,  L.  &  C.  263,  and  see  R.  v.  Stnnnard,  1862, 
L.  &  C.  349,  where  the  whole  house  was  let  in  parts  to  different  women 
as  weekly  tenants.  Such  an  owner  may  be  guilty  of  a  summary  offence 
under  48  &  49  Vict.  c.  69,  s.  13. 

^  1  Russ.  Cr.  427,  see  cases  ;  B.  v.  Pier.son,  1705,  2  Lord  Raym.  1197  ; 
see  also  2  Chitty's  Grim.  Law,  38.  Draft  Code,  s.  155.  Keeping  a  })rothel 
is  now  an  offence  whicli  may  he  punished  sumniarih'  under  48  &  49  Vict, 
c.  69,  s.  13,  see  Oke"s  Synopsis,  p.  178. 

*  B.  V.  Bice  ct  Wilton,  1866,  1  C.  C.  R.  21. 


THE    CRIMINAL    LAW  143 


Article  202. 
common  gaming  houses. 

^  A  common  gaming  house  is  any  house,  room,  or  place 
kept  or  used  for  the  purpose  of  unlawful  gaming  therein  by 
any  considerable  number  of  persons. 

Gaming  means  playing  at  games  either  of  chance,  or  of 
mixed  chance  and  skill. 

Unlawful  gaming  means  gaming  carried  on  in  such  a 
manner,  or  for  such  a  length  of  time  or  for  such  stakes 
(regard  being  had  to  the  circumstances  of  the  players)  that 
it  is  likely  to  be  injurious  to  the  morals  of  those  who  game. 

All  gaming  is  unlawful  in  Avhich 

(i.)  a  bank  is  kept  by  one  or  more  of  the  players,  exclu- 
sively of  the  others  ;  or 

(ii.)  in  which  any  game  is  played  the  chances  of  which  are 
not  alike  favourable  to  all  the  players,  including  among  the 
players  the  banker  or  other  person  by  whom  the  game  is 
managed,  or  against  whom  the  other  players  stake,  play  or 
bet. 

Article  203. 
2  common  betting  houses. 

A  common  betting  house  is  a  house,  office,  room,  or  other 
place 

(i.)  Kept  or  used  for  the  purpose  of  belting  between 
persons  resorting  thereto  and 

the  owner,  occupier,  or  keeper  thereof;  or 

any  person  using  the  same ;  or 

any  person  procured  or  employed  b}-,  or  acting  for  or  »»n 
bf'haif  <jf,  any  such  person  ;^  or 

'  This  flcfiiiition  appeaiH  to  ine  to  l»e  OBtuhlished  by  the  interpretation 
pill  \,y  JtnlcH  V.  Tiirpin,  1HH4,  l.'i  Q.  H.  1).  r>05  on,  iuln-  aJin,  17  fi  18 
Vict.  c.  liH,  H.  4.  The  law  in  diHcuBsed  at  Icngtii  in  the  jiidj^nicnts  of  Sir 
(I.   HawkitiH  an<I  Smith,  J. 

^   16  &  17  Vict.  c.  119,  B.  1,  prcandde.      Draft  Code,  h.   ir)7. 

'  Any  Huch  peruon  =  "owner,  occupier,  or  keeper,  or  perKon  Uhing  the 
Mfie." 


144  A    DIGEST   OF 


any  person  having  the  care  or  management,  or  in  any 
manner  conducting  the  business  thereof ;  or 

(ii.)  Kept  or  used  for  the  purpose  of  any  money  or  valu- 
able thing  being  received  by  or  on  behalf  of  any  such  person 
as  aforesaid,  as  or  for  the  consideration 

for  any  assurance,  undertaking,  promise,  or  agreement, 
express  or  implied,  to  pay  or  give  thereafter  any  money 
or  valuable  thing  on  any  event  or  contingency  of  or  relating 
to  any  horse  race,  or  other  race,  fight,  game,  sport  or  exer- 
cise ;  or 

as  or  for  the  consideration  for  securing  the  paying  or  giving 
by  some  other  person  of  any  money  or  valuable  thing  on 
any  such  event  or  contingency. 

^  Every  common  betting  house  is  deemed  to  be  a  common 
gaming  house. 

Article  204. 
evidence  that  a  house  16  a  common  gaming  house. 

The  following  circumstances  are  evidence  (until  the  con- 
trary is  proved)  that  a  house,  room,  or  place  is  a  common 
gaming  house,  and  that  the  persons  found  therein  were 
unlawfully  playing  therein ;  that  is  to  say, 

(i.)  -where  any  cards,  dice,  balls,  counters,  tables,  or  other 
instruments  of  gaming  used  in  playing  any  unlawful  game 
are  found  in  any  house,  room,  or  place  suspected  to  be  used 
as  a  common  gaming  house,  and  entered  under  a  warrant  or 
order  issued  under  8  &  9  Vict.  c.  109,  or  about  the  person  of 
any  of  those  found  therein  ; 

(ii.)  ^  where  any  constable  or  officer  authorised  as  afore- 
said, to  enter  any  house,  room,  or  place,  is  wilfully  prevented 
from,  or  obstructed,  or  delayed  in  entering  the  same  or  any 
part  thereof,  or  where  any  external  or  internal  door  or  means 
of  access  to  any  such  house,  room,  or  place  so  authorised  to 
be  entered  is  found  to  be  fitted  or  provided  with  any  bolt, 
bar,  chain,  or  any  means  or  contrivance  for  the  purpose  of 

1  16&  17  Vict.  c.  119,  B.  2. 

2  8  &  9  Vict.  c.  109,  8.  8. 
M7  &  18  Vict.  c.  38,  s.  2. 


TUE   CRIMINAL    LAW  145 

preventing,  delaying,  or  obstructing  the  entry  into  the  house, 
or  any  part  thereof,  of  any  constable  or  officer  autliorised  as 
aforesaid,  or  for  giving  alarm  in  case  of  such  entry ;  or 

if  any  such  house,  room,  or  place  is  found  fitted  or  pro- 
vided with  any  means  or  contrivance  for  unlawful  gaming,  or 
for  concealing,  removing,  or  destroying  any  instruments  of 
gaming. 

Article  205. 
disorderly  places  of  entertainment. 

The  following  places  are  disorderly  places  of  entertain- 
ment, that  is  to  say — 

(«.)  ^  Every  house,  room,  garden,  or  other  place  kept  for 
public  dancing,  music,  or  other  public  entertainment  of  the 
like  kind  in  the  cities  of  London  or  Westminster,  or  within 
twenty  miles  thereof,  without  a  licence  granted  in  compli- 
ance with  the  provisions  of  25  Geo.  2,  c.  36. 

2  This  definition  does  not  include  the  Theatres  Royal  in 
Drury  Lane  and  Covent  Garden,  or  the  King's  Theatre  in 
the  Haymarket,  or  any  performance  or  public  entertainment 
carried  on  under  letters  patent,  or  licence  from  the  Crown  or 
the  Lord  Chamberlain. 

{h.)  2  Every  house,  room,  or  other  place  opened  or  used  for 
public  entertainment  or  amusement,  or  for  public  debating 
on  any  subject  whatsoever,  upon  any  part  of  the  Lord's  Day 
called  Sunday,  and  to  which  persons  are  admitted  by  the 
payment  of  money,  or  by  tickets  sold  for  money. 

The  following  places  are  deemed  to  be  places  to  which 
persons  are  admitted  by  the  payment  of  money,  although 
money  is  not  taken  in  the  name  of  or  for  admittance,  that  is 
to  say,  any  house,  room,  or  place — 

(i.)  *at  which  persons  are  supplied  with  tea,  coffee,  or 
other  refreshments  of  eating  or  drinking  on  the  Lord's 
Day  at  any  greater  price  than  the  common  and  usual  prices 

'  25  <Jeo.  2,  e.  :»»,  r.  '_'. 

-  Ibifl.  M.  4.      (jn.  wliutlitr  llie  llicuUu   in    llic    llii}  iiiai  Utt    now    cjillid 
IIIh  .MajcMty'H  "  coihoh  within  this  exception. 
'J I  (U;.  :},  c.  49,  8.  1.  '   ll.i.l.  K.  •_'. 

I. 


146  A    DIGEST   OF 


at  which  the  like  refreshments  are  commonly  sold  upon 
other  days  thereat,  or  at  places  where  the  same  usually 
are  sold  ;  or 

(ii.)  opened  or  used  for  any  of  the  pur})oses  aforesaid  at 
the  expense  of  any  number  of  subscribers  or  contributors 
to  the  carrying  on  any  such  entertainment,  or  amusement, 
or  debate,  on  the  Lord's  Day,  to  which  persons  are  admitted 
by  tickets  to  which  the  subscribers  or  contributors  are 
entitled. 

Article  20G. 

DISORDERLY   INNS. 

^  A  disorderly  inn  is  an  inn  kept  in  a  disorderly  manner 
and  suffered  to  be  resorted  to  by  persons  of  bad  character  for 
any  improper  purpose. 

Every  person  who  keeps  a  disorderly  inn,  or  who,  being 
an  innkeeper,  refuses,  without  reasonable  grounds,  to  entertain 
any  traveller  ready  and  willing  to  pay  for  entertainment 
therein,  commits  a  misdemeanour. 


Article  207. 

lotteries. 

-  Every  person  commits  a  common  nuisance  who  •'  keeps  a 
lottery  of  any  kind  whatever  without  the  authority  of  Parlia- 
ment. 

'  Precedent  of  indictment,  3  Chit.  Crim.  Law,  672-3.  As  to  I'efusing 
entertainment,  see  R.  v.  Rymer,  1877,  2  Q.  B.  D.  136. 

2  10  Will.  3,  c.  17,  s.  1  ;  42  Geo.  3,  c.  119,  s.  2  ;  and  see  R.  v.  Crmv- 
shaw,  1860,  Bell,  C.  C.  303. 

3  "Keeps"  =  "publicly  or  privately  keep  any  office  or  place  to 
exercise,  keep  open,  show,  or  expose,  to  be  played,  drawn,  or  thrown  at 
or  in,  either  by  dice,  lots,  cards,  balls,  or  by  numbers  or  figures,  or  by 
any  other  way,  contrivance,  or  device  whatsoever,  any  game  or  lottery 
called  a  little  go,  or  any  other  lottery  whatsoever  not  authorised  by 
Parliament,"  42  Geo.  3,  c.  119,  s.  2. 


THE   CRIMINAL   LAW  U7 


Article  208. 
nuisances  to  health,  life,  and  property. 

^  Every  person  commits  a  common  nuisance  who  does  any- 
thing which  endangers  the  health,  life,  or  property  of  the 
public  or  any  part  of  it. 

-  Publicly  and  wilfully  exposing  or  causing  to  be  exposed 
for  sale  articles  of  food  unfit  for  consumption,  and  knowingly 
permitting  servants  to  mix  unwholesome  ingredients  in  articles 
of  food,  are  acts  endangering  the  health  or  life  of  the  public 
within  the  meaning  of  this  article. 

^  Ever}i:hing  is  deemed  to  endanger  health,  life,  or  property 
which  either  causes  actual  danger  thereto,  or  which  must  do 
so  in  the  absence  of  a  degree  of  prudence  and  care  the  con- 
tinual exercise  of  which  cannot  be  reasonably  expected. 

Illustrations. 

(1.)  *  A  carries  a  child  infected  with  the  small-pox  along  a 
public  higliway  in  which  persons  are  passing,  and  near  to 
inhabited  houses.      A  commits  a  common  nuisance. 

(2.)  ^  A  permits  his  house  standing  by  the  highway  to  become 
so  ruinous  as  to  be  likely  to  fall  down,  and  to  injure  passengers. 
A  commits  a  common  nuisance. 

(3.)  *^  A  burns  down  his  own  house,  it   being  in  a  situation 


'  See  cases  in  Illustrations.  The  offences  of  being  a  common  scold  and 
of  eavesdropping  wouM  fall  under  this  head,  but  tiiey  may  be  regarded  as 
practically  obsolete. 

^  Draft  Code,  s.  15.3.  Selling  unwholesome  food  is  now  punishable 
summarily  un<ler  the  Public  Health  Acts  38  &  39  Vict.  c.  98,  s.  117, 
.">3  &  'A  Vict.  c.  "lO,  s.  28.  Adulterating  food  or  drugs  for  sale,  or  selling 
them  when  a<lulterated,  after  a  previ(nis  conviction  are  misdemeanours 
jiunishable  with  imprisonment  witli  hard  labour  for  six  months,  3S  & 
.•{9  Vict.  c.  (}3,  8s.   3,  4. 

^  Hlustnition  ('>). 

*  R.  V.  VanlaiKlillo,  18!.'),  4  M.  &  S.  73.  So  of  l)ringing  a  glandered 
horse  to  a,  fair.  A',  v.  JIauMju,  I8."»'2,  Dfar.  Ii4.  An  infected  jicrsoii 
'X posing  himself  would  commit  the  same  oH'cnce. 

■'•   II.  V.    WnUoii,     I7<».");  2  Lord  Kaym.  8.")(). 

"  /(•.  V.  J'robirf,  1799,  \i  Ka.  1'.  (.'.  10.30.  If  there  were  an  intent  to 
injure  or  ilefraud,  this  would  lie  felony.      Sec  Article  419  ia\ 

I.    1,^ 


148  A    DIGEST   OF 


which  makes  such  burning  dangerous  to  others.  A  commits  a 
common  nuisance. 

(4.)  ^  A,  a  baker,  under  contract  to  supi)ly  cliildren  at  a  mili- 
tary asylum  with  bread,  delivers  loaves  into  wliitli  his  servant, 
to  his  knowledge,  has  introduced  alum.  A  commits  a  connnoii 
nuisance. 

(5.)  -  A  keeps  in  a  warehouse  in  the  City  of  London  largo 
quantities  of  a  mixture  of  spirits  of  wine  and  wood  naphtha, 
forming  a  substance  more  inflammable  than  gunpowder,  and  of 
such  a  nature  that  a  fire  lighted  by  it  would  be  practically  un- 
quenchable. A  commits  a  common  nuisance,  although  he  uses  the 
most  scrupulous  care  to  avoid  accidents. 


Article  209. 

nuisances  by  offensive  trades. 

^  Every  one  commits  a  common  nuisance  who,  for  the  pur- 
poses of  trade  or  otherwise,  makes  loud  noises  or  offensive 
or  unwholesome  smells  in  such  places  and  under  such  cir- 
cumstances as  to  annoy  any  considerable  number  of  persons 
in  the  exercise  of  rights  common  to  all  His  Majesty's 
subjects. 

Article  210. 

NUISANCES   to   HIGHWAYS. 

Every  one  commits  a  common  nuisance  who  obstructs  any 
highway,  by  any  permanent  work  or  erection  thereon  or  in- 
jury thereto,  which  renders  the  highway  less  commodious 
to  the  public  than  it  would  otherwise  be ;  or  who  prevents 
them  from  having  access  to  any  part  of  it  by  an  excessive 
and  unreasonable  temporary  use  thereof,  or  by  so  dealing 
with  the  land  in  the  immediate  neighbourhood  of  the  high- 
way as  to  prevent  the  public  from  using  and  enjoying  it 
securely,  *  or  who  does  not  repair  a  highway  which  he  is  bound 
to  repair. 

1  B.  V.  Dixoii.,  1814,  .3  M.  &  S.  11.  See,  too,  R.  v.  Crawley,  1862, 
3  F   &  F.  109  ;  Ji.  v.  Jarn.%  1862,  3  F.  &  F.  108. 

-'  Lister's  Case,  1887,  1  U.  &  B.  C.  C.  209. 

^  1  Russ.  Cr.  438,  &c.,  and  see  Oke's  Synopsis,  p.  ;j54,  as  to  the  sum- 
mary punishment  for  such  a  nuisance  under  the  Public  Health  Act. 

^  1  Russ.  Cr.  477-511. 


THE   CRIMINAL   LAW  149 


IJhistrations. 

Each  of  the  following  acts  is  a  nuisance  to  a  highway  : 

(1.)  ^  Digging  a  ditch,  or  making  a  hedge  across  it,  or  plough- 
ing it  up. 

(2.)  -  Allowing  waggons  to  stand  before  a  warehouse  for  an 
unreasoncible  time  so  as  to  occupy  great  part  of  the  street  for 
several  hours  by  day  and  night. 

(3)  ^  Keeping  uj)  a  hoarding  in  front  of  a  house  in  a  street 
for  the  purpose  of  repairs  for  an  unreasonable  time. 

(■i.)  *  Excavating  an  area  close  to  a  footpath,  and  leaving  it 
unfenced. 

(5.)  ^  Blasting  stones  in  a  quarry  so  as  to  throw  stones  upon 
the  houses  and  road. 

Article  211. 

nuisances  to  bridges. 

•^  Ever}-  one  is  guilty  of  a  common  nuisance  who,  being 
bound  by  hiw  to  repair  a  bridge,  leaves  it  unrepaired. 

Article  212. 

nuisances  to  navigable  rivers. 

"  Every  one  is  guilty  of  a  common  nuisance  who  wilfully 
diverts  or  obstructs  the  course  of  any  navigable  river  ^  so  as 
appreciably  to  diminish  its  convenience  for  purposes  of  navi- 
gation, even  though  the  alteration  may,  upon  the  whole,  be 
for  the  convenience  of  the  public ;  ^  but  the  owner  of  a  vessel 
wrecked  in  a  navigable  river  is  not  guilty  of  a  common 
nuisance  because  ho  does  not  remove  it. 

'   I  Ru.s8.  Cr.  4G9. 

■•^  Jt.  V.  Jiumell,  1805,  6  East,  427. 

•'  J{.  V.  JoneH,  1812,  3  Camp.  2.30. 

*  /ianies  v.    Ward,  1850,  9  C.  B.  392. 
^   It.  V.  Mutltrx,  1864  ;  L.  &  C.  491. 

"   1  KuHH.  C'r.  530-557,  wliere  tlie  whole  law  as  to  the  liability  to  ifpair 
liiirereiit  claHHe«  of   hridges  is  discuHHcd. 
'   1  Huwf.  Cr.  521. 

*  //.  V.  liujidal/,  1842,  C.  &  .\I.  4!)(i  ;   A',  v.  A'umJl,  1854  ;  3  Iv  .V  11.  !I12. 
»  J{.  V.    IValta,   1798,  2  Khj).  075  ;    HAiVt    v.   Crisj),  1854,  10   Kx.  at  p. 

321  ;  Jiroirn  v.  Ma/hft,  1848,  5  C.  B.  599.  U'/iifo.  v.  I'rin/i  aii.l  Jinni ii  v. 
Mnllfit  are  not  allo(,'ethLT  coimiHtont  on  the  furlht-r  (jucHtioii  a8  to  the  duly 
of  tlio  owner  to  \)Wty  Iuh  veHKel,  or  ollierwine  j)rovide  agiiinnt  oilier  veHMeln 
Htriking  on  it. 


150  A    DIGEST   oF 


Article  212a. 

nuisances  in  the  post  office. 

^  Every  person  is  guilty  of  a  misdemeanour,  and  is  liable 
to  imprisonment  with  hard  labour  for  twelve  months,  who 

(1)  places  or  attempts  to  place  in  or  against  any  jjost 
office  letter  box,  any  fire,  match,  light,  explosive,  or  dangerons 
substance,  filth,  noxious  or  deleterious  substance,  or  any 
fluid,  or  commits  a  nuisance  in  or  against  a  post  office  letter 
box,  or  does  or  attempts  to  do  anything  likely  to  injure  the 
box,  appurtenances,  or  contents,  or 

(2)  sends  or  attempts  to  send  a  postal  packet  which 
encloses  any  explosive  or  dangerous  substance,  filth,  noxious 
or  deleterious  substance,  sharp  instrument  not  properly  pro- 
tected, any  living  creature  which  is  noxious  or  any  living 
creature  or  thing  likely  to  injure  other  postal  packets  in 
course  of  conveyance,  or  an  officer  of  the  Post  Office. 

1  47  &  48  Vict.  c.  76,  ss.  3,  4. 


THE    CRIMINAL    LAW  151 


CHAPTER  XX 
J  VAGRANCY 

Article  213. 
idle  and  disorderly  persons. 

-An  idle  and  disorderly  person  is  a  person  who 

(r^)  being  able,  wholly  or  in  part,  to  maintain  himself  or 
his  family  by  work  or  otherwise,  wilfully  refuses  or  neglects 
so  to  do,  by  which  refusal  or  neglect  he  or  any  of  his  family 
whom  he  may  be  legally  bound  to  maintain  becomes  charge- 
able to  any  parish,  to^^^lship,  or  place ;  or 

(Z/.)  who  returns  to,  and  becomes  chargeable  in  any  parish, 
toAXTiship,  or  place  whence  he  has  been  legally  removed  by 
order  of  two  justices  of  the  peace,  unless  he  produces  a 
certificate  of  the  churchwardens  and  overseers  of  the  poor 
of  some  other  parish,  township,  or  place,  thereby  acknow- 
ledging him  to  be  settled  in  such  other  parish,  township,  or 
place ;  or 

(c.)  who,  being  a  petty  chapman  or  pedler,  wanders  abroad 
and  trades  without  being  duly  licensed  or  otherwise  authorised 
by  law  ;  or 

{d.)  who,  being  a  common  prostitute,  wanders  in  the  public 
street  or  public  highways  or  any  place  of  public  resort,  and 
behaves  in  a  riotous  or  indecent  manner;  or 

(e.)  who  wanders  abroad,  or  places  himself  in  any  public 
place,  street,  highway,  court,  or  passage,  ^to  beg  or  gather 
alms,  or  causes  or  procures  any  child  so  to  do ;  or 

•  3  Hist.  Cr.  Law,  266-2"/).  As  to  the  suniinury  puiiislunent  of  otronces 
and  for  the  deoiHioiiH  applicable  to  this  chapter,  Hee  Okc's  Synopsia, 
pp.    6.'>4-662. 

■■«  5  (ieo.  4,  c.  83,  H.  3. 

'  The  wandering,  &c.,  must  he  as  a  habit  of  life.  I'eiHons  who  go 
a)>out  collecting  aliiiH  for  a  H|)ecific  ])ur])OHe,  and  not  aa  u  way  of  life,  are 
not  within  the  HUtute.      /'ointoii  v.  Hill,  1H84,  12  Q.  15.  I).  3(Hi. 


152  A    DIGEST   OF 


(f.)  ^  who,  being  ii  paujjor, 

(i.)  absconds  or  cscapi's  from,  or  leaves  any  casual  ward 
before  he  is  entitled  to  discharge  himself  therefrom  ;  or 

(ii.)  refuses  to  be  removed  to  any  workhouse  or  asylum 
under  the  provisions  of  the  "  Pauper  Inmates  Discharge  and 
Regulation  Act  1871 "  (34  &  35  Vict.  c.  108);  or 

(iii.)  absconds  or  escapes  from,  or  leaves  any  workhouse 
or  asylum  during  the  period  foi-  which  he  may  be  detained 
therein ;  or 

(iv.)  refuses  or  neglects,  whilst  an  inmate  of  any  casual 
ward,  workhouse,  or  asylum,  to  do  the  work  or  observe  the 
regulations  prescribed  ;  or 

(v.)  wilfully  gives  a  false  name,  or  makes  a  false  state- 
ment, for  the  purpose  of  obtaining  relief. 

Article  214. 
rogues  and  vagabonds. 

-  A  rogue  and  vagabond  is  a  person  who 

(a.)  commits  any  of  the  offences  in  the  last  Article  men- 
tioned, after  having  been  convicted  as  an  idle  and  disorderly 
person ;  or 

(h.)  pretends  or  professes  to  tell  fortunes,  or  uses  any  subtle 
craft,  means  or  device,  ^  by  palmistry  or  otherwise,  to  deceive 
and  impose  on  any  of  His  Majesty's  subjects  ;  or 

(c.)  wanders  abroad  and  lodges  in  any  barn  or  outhouse,  or 
in  any  deserted  or  unoccupied  building,  or  in  the  open  air,  or 
under  a  tent,  or  in  any  cart  or  waggon,  not  having  any  visible 
means  of  subsistence,  and  not  giving  a  good  account  of  himself; 
or 

(d.)  *  wilfully  exposes  to  view  in  any  street,  road,  highway, 
or  public  place,  or  in  the  window  or  other  part  of  any  shop, 

1  34  &  35  Vict.  c.  108,  s.  7. 

2  5  Geo.  4,  c.  83,  s.  4. 

3  i.e.,  "by  palmistry,  or  by  contrivances  to  deceive  other  than  palmistry, 
provided  they  are  of  the  same  general  character  as  is  indicated  by  the 
earlier  words  of  the  statute,"  7>er  Pollock,  B.,  in  Monck  v.  Hilton,  1877, 
2  Ex.  Div.  268.  In  this  case  the  person  convicted  called  himself  a 
"spiritualist,"  and  had  a  fixed  residence. 

■»   1  &  2  Vict.  c.  38,  s.  2. 


THE    CRIMINAL   LAW  153 

or  other  building  situate  therein,  any  obscene  print,  picture, 
or  other  indecent  exhibition  ;  or 

(f.)  wilfully,  openly,  lewdly,  and  obscenely  exposes  his  person 
in  any  street,  road,  or  public  highway,  or  in  the  view  thereof; 
or  in  any  place  of  public  resort,  with  intent  to  insult  any 
female ;  or 

(/'.)  wanders  abroad  and  endeavours,  by  the  exposure  of 
wounds  or  deformities,  to  obtain  or  gather  alms ;  or 

{g.)  goes  about  as  a  gatherer  or  collector  of  alms,  or  en- 
deavours to  procure  charitable  contributions  of  any  nature 
or  kind  under  any  false  or  fraudulent  pretence  ;  or 

(Ji.)  runs  away  and  leaves  his  Avife  and  his  or  her  child  or 
children  chargeable,  whereby  she  or  they  or  any  of  them 
become  chargeable  to  any  parish,  township,  or  place ;  or 

(t.)  ^  plays  or  bets  *  in  any  street,  road,  highway,  or  other 
open  and  public  place,f  at  or  with  any  table  or  instrument 
of  gaming.J  at  any  game  or  pretended  game  of  chance  ;  or 

(J.)  has  in  his  custody  or  possession  any  picklock,  key, 
crow,  jack,  bit,  or  other  implement,  with  intent  feloniously 
to  break  into  any  dwelling-house,  warehouse,  coachhouse, 
stable,  or  outbuilding  ;  or 

{k.)  is  armed  with  any  gun,  pistol,  hanger,  cutlass, 
bludgeon,  or  other  offensive  weapon,  or  has  upon  him  any 
instrument  with  intent  to  commit  any  felonious  act ;  or 

(/.)  is  found  in  or  upon  any  dwelling-house,  warehouse, 
coachhouse,  stable,  outhouse,  or  in  any  inclosed  yard, 
garden,  or  area,  for  any  unlawful  purpose ;  or 

(m.)  is  a  suspected  person  or  reputed  thief  -frequenting 

'  36  &  37  Vict.  c.  38,  s.  3,  re-enacts  this  provision,  adding  at  *  "  by 
way  of  wagering  or  gaming,"  at  t  "or  in  any  open  j)lace  to  whicli  the 
jjiihlic  have  or  are  ])ernutted  to  have  access,"  and  at  X  "  o'"  ^i"}'  coin,  casli, 
token,  or  otlier  article  used  as  an  instrument  of  such  wagering  or  gaming. 
See  cases  collected  in  Oke's  .Synojisis,  0.09. 

-  "  A  single  visit  to  a  place,  or  once  j)a8sing  through  a  street,  can  in  no 
sense  Ijesaid  to  l>e  a  '  fr<;<|uenting  that '  place  or  street,"  drove,  J.,  in  Clark 
V.  IUjj.,  1HS4,  14  (^  15.  I),  at  p.  UK.  "The  mere  finding  upon  one  occasion 
of  a  man  in  a  jjuIiIIc  street  under  circumstances  leading  U>  the  conclusion 
that  he  intended  to  commit  a  felony  is  not  Hullicieiit  to  satisfy  the  statute. 
W'iiat  amounts  to  a  '  frctjuenting  '  a  stieet  must  di!i)end  upon  tlie  circum- 
-tfinces  of  widi  parljrular  case  ;  I  only  say  one  visit  to  it  does  not." 
M.'iN^kinH,  .i.,  in   iliid.  p.    102. 


154  A    DIGEST  OF 


any  river,  canal,  or  navigable  stream,  dock  or  basin,  or  any 
quay,  wharf,  or  warehouse,  or  any  avenue  leading  thereto,  or 
any  street  [^  or  any  highway,  or  any  place  adjacent  to  a  street 
or  highway]  with  intent  to  commit  felony  ;  ^  in  proving  which 
it  is  not  necessary  to  show  that  the  person  suspected  was 
guilty  of  any  particular  act  tending  to  show  his  purpose  or 
intent,  and  he  may  be  convicted  if,  from  the  circumstances 
of  the  case,  and  from  his  known  character  as  proved  to  the 
Court  or  justice  before  whom  or  which  lie  is  brought,  it  a])- 
pears  to  such  Court  or  justice  that  his  intent  was  to  commit 
a  felony ;  or 

(n.)  -  being  apprehended  as  an  idle  and  disorderly  person 
violently  resists  any  constable  or  other  peace  officer,  so  appre- 
hending him,  and  is  subsequently  convicted  of  the  offence 
for  which  he  was  so  apprehended ;  or 

(o.)  ^  who,  being  a  pauper,  wilfully  destroys  or  injures  his 
own  clothes,  or  damages  any  of  the  property  of  the  guardians. 


Article   215. 
incorrigible  rogues. 

•*  An  incorrigible  rogue  is  a  person  who 

(a.)  breaks  or  escapes  out  of  any  place  of  legal  confine- 
ment before  the  expiration  of  the  term  for  which  he  is 
committed  under  Article  214  ;  or 

(&.)  is  convicted  as  a  rogue  and  vagabond  after  being 
previously  so  convicted  ;  or 

(c.)  being  apprehended  as  a  rogue  and  vagabond,  violently 
resists  any  constable  or  peace  officer  so  apprehending  him, 
and  is  subsequently  convicted  of  the  offence  for  which  he  was 
apprehended. 

1  34  &  35  Vict.  c.  112,  s.  15. 
-  5  Geo.  4,  c.  83,  s.  4. 

3  34  &  35  Vict.  c.  108,  ss.  7,  10. 

4  5  Geo.  4,  c.  83,  s.  5. 


THE   CRIMINAL   LAW  155 

Article  216. 
punishment  of  rogues,  vagabonds,  etc. 

^  Every  one  convicted  before  a  justice  of  the  peace 

of  being  an  idle  and  disorderly  person  may  be  imprisoned 
with  hard  labour  for  any  term  not  exceeding  one  month  ; 

of  being  a  rogue  and  vagabond  may  be  imprisoned  with 
hard  labour  for  any  term  not  exceeding  three  months  ; 

of  being  an  incorrigible  rogue  must  be  committed  to 
prison  and  kept  to  hard  labour  till  the  next  general  or 
quarterly  sessions  of  the  peace  ; 

at  the  said  sessions  the  justices  may  order  such  offender 
to  be  further  committed  to  prison  and  to  be  there  kept  to 
hard  labour  for  any  term  not  exceeding  one  year,  and  if  a 
male  to  be  whipped. 

1  5  Geo.  4,  c.  83,  ss.  3,  4,  5. 


15G 


A   BIG  US  7'   OF 


*PART   V 


OFFENCES  AGAINST  THE  PERSON,  THE  CON- 
JUGAL AND  PARENTAL  RIGHTS,  AND  THE 
REPUTATION   OF   INDIVIDUALS 


CHAP.  XXL— Cases  in  which  In- 
fliction OF  Bodily  Injury  is 
NOT  Criminal. 

CHAP.  XXII.— Of  Culpable  Neg- 
ligence AND  OF  Duties  tending 
TO  the  Preservation  of  Life. 

CHAP.  XXIIL— Homicide. 

CHAP.  XXIV.— Murder  — Man- 
slaughter— Attempts  to  Com- 
mit Murder — Concealment  of 
Birth. 

CHAP.  XXV.— The  Malicious  In- 
fliction OF  Bodily  Injuries 
amounting  to  Felony. 

CHAP.  XXVI. —The  Infliction 
of  Bodily  Injuries  not  amount- 
ing to  Felony. 


CHAP.  XXVIL  —  Assaults,  Ag- 
gravated .\ND  Common,  punish- 
able ON  Indictment. 

CHAP.  XXVIIL— Rape,  &c. 

CHAP.  XXIX.— Crimes  Affect- 
ing Conjugal  and  Parental 
Rights — Bigamy — Abduction. 

CHAP.  XXX. — Offences  against 
Children  by  Parents  and 
Others. 

CHAP.  XXXI. — Offences  again.st 
Paupers. 

CHAP.  XXXIL— Offences  as  to 
Lunatics. 

CHAP.  XXXIIL— Libels  on  Pri- 

V.VTE  PeKSONS. 


CHAPTER  XXI 

CASES  IN  WHICH  INFLICTION  OF  BODILY  INJURY 
IS  NOT  CRIMINAL 

Article  217. 

exceptions  to  rest  of  part  v. 

The  contents  of  Part  V.  arc  to  be  taken  to  Le  subject  to 
the  provisions  contained  in  this  chapter. 


Article"  218. 

execution  of  lawful  sentences. 

^  The  intentional  infliction  of  death  or  bodily  harm  is  not 
a  crime  when  it  is  done  in  the  execution,  in  the  manner  pre- 

*  Note  VII.     See  also  3  Hist.  Cr.  Law,  ch.  xxvi.  and  xxvii.  pp.  1-120. 

1  1   Hale,  P.  C.  497  ;  Foster,  267  ;  1   Hawk.  P.  C.  80  ;  1   East,  P.  C. 

332-4.     These  authorities  contain  (inter  a/ia)  discussions  as  to  varying  the 


THE   CRIMIXAL   LAW  157 

scribed  by  law  by  a  person  whose  duty  it  is  to  execute  it,  of 
a  lawful  sentence  duly  passed  by  a  competent  Court. 

A  Court  which,  but  for  some  formal  defect  in  its  authority 
or  in  its  proceedings,  would  have  had  jurisdiction  to  pass 
a  sentence,  is  deemed  for  the  purpose  of  this  Article  to 
be  a  competent  Court ;  but  a  Court  which  has  by  law  no 
jurisdiction  at  all  over  the  case  in  which  sentence  is  passed 
is  not  deemed  to  be  a  competent  Court,  and  a  mistaken 
belief  on  the  part  of  the  judge,  or  of  the  officer  who  executes 
the  sentence,  that  it  is  competent,  does  not  justify  or  excuse 
his  act. 

Illustrations. 

(1.)  ^  A  sits  under  a  commission  of  gcaol  delivery.  The  officer 
forgets  to  adjourn  the  Court  at  the  end  of  the  first  day's  sitting. 
This  determines  the  commission.  On  tlie  following  day  A  sits 
again,  and  sentences  a  felon  to  death,  who  is  duly  executed  by 
B.  Neither  A  nor  B  is  guilty  of  nmrder  or  manslaughter, 
though  the  proceedings  are  irregular. 

(2.)  ^  A,  lieutenant  or  other  having  commission  of  martial 
authority  in  time  of  peace,  causes  B  to  be  hanged  by  C  by  colour 
of  martial  law.      This  is  murder  in  both  A  and  C. 

Article  219. 

suppressiox  of  riots. 

^Thc  intentional  infliction  of  death  or  bodily  harm  is  not 
a  crime  when  it  is  done  either  by  justices  of  the  peace,  peace 


form  of  punishment  (as  by  substituting  beheading  for  lianging)  little  likelj' 
to  Ixj  of  practical  value.      Draft  Code,  s.s.  25  and  28. 

'  Ptr  Lord  Hale,  1  Hale,  P.  C.  498. 

2  Coke,  3rd  Inst.  52  ;  1  Hale,  P.  C.  499,  500.  The  wliole  snliject  of 
martial  law  underwent  full  discussion  in  connection  witli  tlic  execution  of 
Mr.  (Jordon  by  a  court-martial  in  Jamaica  in  18G5.  An  elaborate  hi.story 
of  the  case  lias  been  publisheil  by  Mr.  Fiidason,  and  the  ciiarge  to  the 
grand  jury,  delivered  at  the  Central  Criminal  Court  by  the  Lord  Chief 
JuHtice  of  Kngland,  has  l)een  published  in  a  separate  form.  I  know  not 
whether  tlie  charge  to  tiie  graml  jury  of  Miildlesex,  delivered  by  Lord 
(then  .Mr.  Justice)  Hla<;kl»uni,  has  been  published  or  not.  Miidi  informa- 
tion on  tlie  subject  will  be  found  in  Fiirsyth's  (Jascs  and  OpiniouH  on  Con- 
stitutional Liw,  pp.  484  5(i.S.  .\lr.  Forsyth  prints,  in/)  r  a/id,  an  opinion 
KJven  by  tiie  late  .\li-.  Iviward  .James,  i)A'.,  and  myself,  in  IStitJ,  see  pp. 
551   5«;{  ;  an<l  see  I'hillipx  v.  Eyn ,  1870,  L.  K.  C  (^.  H.   I. 

'  .<ii-  111.-  .  Iiiirge  of  Tindal,  C.J.,  to  the  grand  jury  of   Bristol  in  1832, 


158  A   DIGEST  OF 


officers,  or  private  persons,  whether  such  persons  are,  and 
whether  they  act  as,  soldiers  under  military  discipline  or  not 
for  the  purpose  of  suppressing  a  general  and  dangerous  riot 
which  cannot  otherwise  be  suppressed. 


Article  220. 

prevention  of  the  commission  of  crimes  and  arrest  of 

criminals. 

The  intentional  infliction  of  death  or  bodily  harm  is  not  a 
crime  when  it  is  done  by  any  person 

^  in  order  to  prevent  the  commission  of  treason,  murder, 
burglary,  rape,  robbery,  arson,  piracy,  or  any  other  felony 
in  which  the  traitor,  felon,  or  pirate  so  acts  as  to  give  the 
person  who  kills  or  wounds  him  reasonable  ground  to  believe 
that  he  intends  to  accomplish  his  purpose  by  open  force ; 

^or,  in  order  to  arrest  a  traitor,  felon,  or  pirate,  or  retake 
or  keep  in  lawful  custody  a  traitor,  felon,  or  pirate  who  has 
escaped,  or  is  about  to  escape,  from  such  custody,  although 
such  traitor,  felon,  or  pirate  offers  no  violence  to  any  person  ; 

^or,  Avhen  it  is  done  by  a  constable,  or  other  officer  of 


printed  in  a  note  to  R.  v.  Pinney,  1832,  5  C.  &  P.  254,  and  quoted  and 
approved  in  Phillips  v.  Eyre,  sup.  (Court  of  Exchequer  Chamber).  The 
proper  course  in  such  cases  is  for  the  civil  magistrate  to  direct  and  control 
what  is  done,  but  this  is  not  absohitelj'  necessary.  The  Riot  Act  (1 
Geo.  1,  St.  2,  c.  5,  see  Article  79)  authorises  in  express  terms  the  dispersion 
of  rioters  who  continue  riotoiisly  assembled  together  for  more  than  an  hour 
after  the  proclamation  made,  and  indemnifies  the  persons  concerned  if  any 
of  the  rioters  should  be  killed  ;  but  this  Act  appears  to  be  narrower  than 
the  common  law  as  laid  down  bv  Tindal,  C.J.  See  Draft  Code,  ss. 
49,  50. 

1  1  Coke,  3rd  Inst.  55  ;  1  Hale,  P.  C.  486-7  ;  Foster,  273  (more  fully 
and  satisfactorily)  ;  1  Hawk.  P.  C.  82  (rather  confusedly) ;  1  East,  P.  C. 
271-4  (best  and  most  fullj'  stated)  ;  1  Russ.  Cr.  843-52  (taken  substan- 
tially from  East).  Piracy  is  not  mentioned  by  the  authorities,  but  see 
8  Geo.  1,  c.  24,  s.  6.     Article  116.      Draft  Code,  s.  54. 

2  Coke,  3rd  Inst.  56  ;  1  Hale,  P.  C.  489  ;  1  Hawk.  P.  C.  81  ;  Foster, 
270-1  ;  I  East,  P.  C.  298  302.     Draft  Code,  ss.  32-46. 

3  Coke,  3rd  Inst.  55  ;  1  Hale,  P.  C.  490  ;  1  Hawk.  P.  C.  81  ;  1  East, 
P.  C.  298-302.  It  must  be  observed  that  this  Article  is  confined  to  the 
intentional  iiiHiction  of  death  or  bodily  injury.  If  the  death  or  injury  is 
not  an  intended  or  probable  consequence  of  the  act,  the  case  is  provided 
for  under  Articles  231,  243. 


THE    CRIMINAL   LAW  159 

justice,  in  order  to  execute  a  warrant  of  arrest  for  treason 
or  felony,  which  cannot  otherwise  be  executed,  although 
the  person  named  in  the  warrant  offers  no  violence  to  any 
person ; 

provided,  in  each  of  the  said  cases,  that  the  object  for 
which  death  or  harm  is  inflicted  cannot  be  otherwise  accom- 
plished. 

Article  221. 
^  private  defexce. 

The  intentional  infliction  of  death  or  bodily  harm  is  not  a 
crime  when  it  is  inflicted  by  any  person  in  order  to  defend 
himself  or  any  other  person  from  unlawful  violence,  provided 
that  the  person  inflicting  it  observes  the  following  rules  as 
to  avoiding  its  infliction,  and  inflicts  no  greater  injury  in 
any  case  than  he  in  good  faith  and  on  reasonable  grounds 
believes  to  be  necessary  when  he  inflicts  it : — 

(«.")  -  If  a  person  is  assaulted  in  such  a  manner  as  to  put 
him  in  immediate  and  obvious  danger  of  instant  death  or 
grievous  bodily  harm,  he  may  defend  himself  on  the  spot, 
and  may  kill  or  wound  the  person  by  whom  he  is  assaulted. 

(h.)  ^  If  a  person  is  unlawfully  assaulted, 

(i.)  in  his  own  house  ; 

(ii.)  ■*  in  the  execution  of  a  duty  imjiosed  upon  him  by 
law; 

(iii.)  •*  by  way  of  resistance  to  the  exercise  of  force  which 
he  hcos  by  law  a  right  to  employ  against  the  jDcrson 
of  another ; 
he  may  defend  himself  on  the  spot,  and  may  use  a  degree  of 

'   See  Draft  Code,  ss.  .!.■)   (i.'j. 

-  Coke,  .Sid  Inst.  ").')  ;  1  Hale,  P.  C.  487  ;  I  Hawk.  P.  C.  82  ;  Foster, 
273-.0  ;  1  Kuss.  Cr.  844.  'i'his  cfiHe  is  so  nearly  coextensive  witii  the  first 
case  mentioned  in  the  last  Article  that  East  does  not  notice  tiitin  sej)a- 
rately.  Cases,  however,  may  be  imagined  in  which  a  sudden  and  violent 
asHault  would  ije  no  crime,  and  yet  migiit  he  resisted  liy  killing  the 
aHHailant  :  see  Illustration  (\). 

^  Staundforde,  14a;  Coke,  .Srd  Inst.  .Ki  ;  I  Hale,  P.  C.  4S(i,  *c.  ;  1 
Hawk.  P.  C.  H7  ;   Foster,  '27.'>  (i  ;    1    Fast,  P.  (J.  >J87,  -'88. 

*  In  additi')n  to  the  authorities  in  the  last  note,  see  1  Fast,  P.  C. 
294  298,  &e.  ;    1  Hale,  P.  C.  48!l. 


160  A   DIGEST   OF 


force  for  that  purpose  proportioned  to  the  violence  of  the 
assault,  and  sufficient  (in  case  iii.)  to  enable  him  not  only  to 
repel  the  attack  made  upon  him,  but  to  effect  his  original 
purpose ;  but  a  person  using  force  in  the  execution  of  a  duty 
imposed  upon  him  by  law,  or  in  order  to  effect  a  purpose 
which  he  may  by  law  effect  in  that  manner,  and  not  being 
assaulted,  is  not  entitled  to  strike  or  hurt  the  person  against 
whom  he  employs  such  force,  merely  because  he  is  unable 
otherwise  to  execute  such  duty  or  fulfil  such  purpose,  except 
in  the  cases  provided  for  in  Article  220. 

(c.)  1  If  a  person  is  unlawfully  assaulted  by  another  with- 
out any  fault  of  his  own,  and  otherwise  than  in  the  cases 
provided  for  in  clauses  (a.)  and  (b.),  but  with  a  deadly  weapon, 
it  is  his  duty  to  abstain  from  the  intentional  infliction  of 
death  or  grievous  bodily  harm  on  the  person  assaulting, 
until  he  (the  person  assaulted)  has  retreated  as  far  as  he  can 
with  safety  to  himself 

But  any  person  unlawfully  assaulted  may  defend  himself 
on  the  spot  by  any  force  short  of  the  intentional  infliction 
of  death  or  grievous  bodily  harm  ;  and  if  the  assault  upon 
him  is  notwithstanding  continued,  he  is  in  the  position  of 

1  See  the  authorities  quoted  for  clauses  (a.)  and  (6.),  and  especially 
1  Hale,  P.  C.  479-481.  The  qualification  at  the  end  of  this  rule  is  founded 
on  the  doctrine  that  any  one  may  lawfulh'  prevent  or  suppress  by  force  a 
breach  of  the  peace  or  afl'ray  (1  Hawk.  P.  C.  489  ;  B.  v.  Osmer,  1804, 
5  p]ast,  304),  from  whicli  it  would  seem  to  follow  that  a  man  who  is  him- 
self assaulted  maj'  resist  his  assailant,  and  on  the  doctrine  that  so7i  axtaidt 
demesne  is  a  good  defence  to  an  indictment  for  assault  (1  Hawk.  P.  C. 
1 10).  If  this  were  not  the  law  it  would  follow  that  any  rutiian  who  chose 
to  assault  a  quiet  person  in  the  street  might  impose  upon  him  the  legal 
duty  of  running  awa}-,  even  if  he  were  the  stronger  man  of  the  two.  The 
passage  of  Hale  appears  to  me  to  be  applicable  only  to  cases  where  deadly 
weapons  are  produced  hy  way  of  bravado  or  intimidation,  a  cause  which 
no  doubt  often  occurred  when  people  habitually  carried  arms  and  used 
them  on  very  slight  provocation.  In  sucli  a  case  it  might  reasonably  be 
regarded  as  the  duty  of  the  person  assaulted  to  retreat  rather  than  draw 
his  own  sword,  but  I  cannot  think  that  Hale  meant  to  say  that  a  man 
who  in  such  a  case  closed  with  his  assailant  and  took  his  sword  from  him 
would  be  acting  illegally,  or  that  if  in  doing  so  the  as.sailant  were  thrown 
down  and  accidentally  killed  by  the  fall  the  person  causing  his  death 
would  be  guilt\'  of  felony.  The  minuteness  of  the  law  contained  in  the 
authorities  on  which  this  Article  is  founded  is  a  curious  i-elic  of  a  time 
when  police  was  lax  and  brawls  fre((uent,  and  when  every  gentleman  wore 
arms  and  was  supposed  to  be  familiar  with  the  use  of  them.  It  might,  I 
think,  be  simplified  m  the  present  day  with  advantage. 


THE   CRIMINAL   LAW  IGl 


a  person  assaulted  in  the  employment  of  lawful  force  against 
the  person  of  another. 

{(l.)  ^  If  two  persons  quarrel  and  fight,  neither  is  regarded 
as  defending  himself  against  the  other  until  he  has  in  good 
faith  fled  from  the  fight  as  far  as  he  can  ;  but  if  either  party 
does  in  good  faith  flee  from  the  fight  as  far  as  he  can,  and 
if,  when  he  is  prevented  either  by  a  natural  obstacle  or  any 
other  cause  of  the  same  nature,  from  flying  further,  the  other 
party  to  the  fight  follows  and  again  assaults  him,  the  person 
who  has  so  fled  may  defend  himself,  and  may  use  a  degree  of 
violence  for  that  purpose  proportioned  to  the  violence  em- 
ployed against  him. 

Hlv^trations. 

(1.)  ^  A,  a  madman,  violently  attacks  B  in  such  a  manner  as 
to  cause  instant  danger  to  B's  life.  B  may  kill  A,  thougli  A  is 
not  committing  any  crime. 

(2.)*^  A,  an  officer,  has  a  warrant  to  ai'rest  B  on  civil  process. 
B  flies.  A  overtakes  him,  and  B  assaults  A.  A  may  use  any 
degree  of  violence  to  B  necessary  to  repel  his  assault  and  to 
arrest  him. 

(3.)  *  A,  a  trespasser,  enters  B's  house,  and  refuses  to  leave  it. 
B  has  a  right  to  remove  A  by  force,  but  not  to  strike  him  even 
if  he  cannot  otherwise  get  him  out  of  the  house.  If  on  the 
application  of  such  force  A  assaults  B,  B  may  use  any  degree  of 
force  necessary  to  defend  him.self  and  to  remove  A  from  the 
liouse. 

Article  222. 

lawful  force. 

''  It  is  not  a  crime  to  inflict  bodily  h;inii  by  way  of  lawful 
correction,  or  by  any  lawful  application  of  force  (other  than 

'  See  the  authorities  for  elauHe  (h). 

-  ThJM  seems  to  fr)llow  directly  fruiii  the  autiiorities  cited.  So,  if  A 
were  under  a  mistake  of  fact  wiiieli  I',  li.id  ri<>  time  to  explain. 

'   I  Kast,  V.  (J.  307. 

*   1  Hale,  V.  C.  4S0. 

^  It  would  l)e  iiiioiiHistent  witli  tlie  plan  of  tiiis  work  to  tr}'  to  cnumcr- 
.■it«!  all  tin;  r;aHc.'<  in  wliieli  force  may  he  lawfully  a|>pli<'d  to  the  person  of 
another.  In  I  Hums.  707  77' •  eases  will  he  found  as  to  exci'ssive  violence 
in  executing  legal  process  ;  and  see  R.  v.  1'ranter,  17'2I  ;  Str.  4519  ;  I  Kiiss. 
822  :  a«  to  presRing  for  sea  service  Bee  I  Kuss.  7»1H  :  "s  to  the  powers  of 

M 


162  A    DIGEST   OF 


those  hereinbefore  mentioned)  to  the  person  of  another ;  but 
if  the  harm  inflicted  on  such  an  occasion  is  excessive  the  act 
which  inflicts  it  is  unlawful,  and,  even  if  there  is  no  excess, 
it  is  the  duty  of  every  person  applying  the  force  to  take 
reasonable  precautions  against  the  infliction  of  other  or 
greater  harm  than  the  occasion  requires. 

Illustrations. 

(1.)  ^  A,  a  schoolmaster,  beats  B,  a  scholar,  for  two  hours  with 
a  thick  stick.     8uch  a  beating  is  unlawful. 

(2.)  ^  A  kicks  B,  a  trespasser,  out  of  his  house,  in  order  to 
force  him  to  leave  it.  B  is  killed.  The  kick  is  an  unlawful 
act. 

(3.)  (Submitted.)  A,  the  governor  of  a  gaol,  flogs  B,  a 
criminal,  under  the  sentence  of  a  court.  It  is  A's  duty  to  cause 
the  surgeon  of  the  gaol  to  be  in  attendance  to  see  that  no  unin- 
tended injury  is  inflicted  on  B. 


Article  223. 

superior  orders  to  employ  force. 

In  all  cases  in  which  force  is  used  against  the  person  of 
another,  both  the  person  who  orders  such  force  to  be  used 
and  the  person  using  that  force  are  responsible  for  its  use,  and 
neither  of  them  is  justified  by  the  circumstance  that  he  acts 
in  obedience  to  orders  given  him  by  a  civil  or  military  supe- 
rior, but  the  fact  that  he  did  so  act,  and  the  fact  that  the 
order  was  apparently  lawful,  are  in  all  cases  relevant  to  the 
question  whether  he  believed,  in  good  faith  and  on  reasonable 
grounds,  in  the  existence  of  a  state  of  facts  which  would 
have  justified  what  he  did  apart  from  such  orders,^  or  which 
might  justify  his  superior  officer  in  giving  such  orders. 


captains  in  the  merchant  service  see  JR.  v.  Leggelt,  1838,  8  C.  &  P.  191; 
1  Russ.  773  ;  as  to  the  correction  of  children  and  servants  see  1  Russ. 
773-778.     See  Draft  Code,  s.  66. 

1  R.  V.  Hopley,  1860,  1  Russ.  Cr.  776  ;  2  F.  &  F.  202. 

2  Wild's  Case,  1837,  1  Russ.  Cr.  686  ;  2  Lewin,  214. 

3  As  to  this  see  1  Hist.  Cr.  Law,  205. 


THE   CRIMINAL   LAW  163 


Ilhistrations. 

(1.)  ^  A,  a  marine,  is  ordered  by  his  superior  officer  on  board 
a  man-of-war  to  prevent  boats  from  approaching  the  ship,  and 
has  ammunition  given  him  for  that  purpose.  Boats  persisting 
after  I'epeated  warnings  in  approaching  the  ship,  A  fires  at  one 
and  kills  B.  This  is  murder  in  A  although  he  fired  under  the 
impression  that  it  was  his  duty  to  do  so,  as  the  act  was  not 
necessary  for  the  preservation  of  the  ship  [though  desirable  for 
the  maintenance  of  discipline]. 

(2.)  ^  A,  the  driver  of  an  engine,  orders  B,  the  stoker  (wliose 
duty  it  is  to  obey  his  orders),  not  to  stop  the  engine.  The  train 
runs  into  another  in  consequence,  and  C  is  killed.  B  is  justified 
by  A's  order. 

(3.)  ^  (Submitted.)  A,  a  civil  magistrate,  directs  B,  a  military 
officer,  to  order  his  men  to  fire  into  a  mob.  B  gives  the  order. 
It  is  obeyed,  and  C,  a  common  soldier,  shoots  D  dead.  The 
question  whether  A,  B,  and  C  respectively  committed  any  offence 
depends  on  the  question  whether  each  of  them  respectively  had 
reasonable  grounds  to  believe,  and  did  in  fact  believe  in  good 
faith,  either  that  what  they  did  was  necessary  to  suppress  a  dan- 
gei'ous  riot,  or  in  the  case  of  B,  that  A,  or  in  the  case  of  C,  that 
B,  had  reasonable  grounds  to  believe,  and  did  believe,  that  the 
order  given  was  necessary  to  suppress  a  dangerous  riot.  A's 
direction  to  B,  and  B's  order  to  C,  would  not  necessarily  justify 
B  or  C  in  what  they  did,  but  would  be  facts  relevant  to  the 
question  whether  they  believed  upon  reasonable  grounds  as 
aforesaid. 

J  R.  V.  Thomas,  I8I0,  1  Russ.  Cr.  732;  4  M.  &  S.  442. 

2  R.  V.  Trainer,  1864,  4  F.  &  F.  105  ;  1  Russ.  Cr.  837,  838.  The 
language  of  Willes,  J.,  iu  this  case  seems  to  be  a  little  too  wide,  unless  it 
is  taken  in  coiniection  with  the  particular  facts. 

3  Whether  C  would  commit  a  military  offence  if  he  refused  to  obey  B's 
order  because  he  rightly  thought  it  unreasonable,  is  a  question  which 
would  liave  to  be  <leci(lcil  by  a  court-martial.  I  should  suppose  that  cases 
might  be  imagined  in  which  even  a  court-martial  would  hold  that  a 
military  inferior  might  and  ought  to  di.sobey  orders  on  the  ground  of  their 
illegality.  An  oflicer,  e.g.,  wiio  connnanded  his  men  to  fire  a  vf>lley  down 
Fleet  Street  when  there  was  no  appearance  of  a  disturbance,  or  to  slujot  a 
child  of  four  years  old  running  away  duiing  a  liot,  or  to  desert  to  tl>e 
enemy,  fir  to  shofjt  a  supeiioi'  oiiicer,  <jught  to  l)e  disobeyed,  and  I  sujiposi- 
that  a  Koldiei-  who  obeyed  su(,-li  an  order  miglit  be  punislied  liy  a  couil- 
murtial.  Tiiat  such  acts  as  shooting  jieaceable  people  wantonly,  or  a  cliihl 
of  four  years  old  intentionally,  even  in  a  ri<jt,  wriuld  be  murder  as  well  in 
tlie  soldier  as  in  the  oHicer  cannot  be  doubted.  If  so,  it  seems  impossilile 
to  suggest  any  other  principle  as  to  the  eflect  of  superior  orders  than  tlie 
one  mentioned  in  the  text.  It  is  indecjrl  essential  to  the  inaintenuncj  of 
the  Huprernaf.y  of  the  common  law  over  military  force?. 

.M    2 


164  A    DIGEST  OF 

Article  224. 
consent  to  bodily  injury. 

The  consent  of  a  person  killed  or  maimed  to  the  infliction 
of  death  or  bodily  harm,  affects  the  criminality  of  such  in- 
fliction to  the  extent  defined  in  Articles  225-230,  both 
inclusive.  In  each  of  these  Articles  the  word  "  consent  " 
means  a  consent  freely  given  by  a  rational  and  sober  person 
so  situated  as  to  be  able  to  form  a  rational  opinion  upon  the 
matter  to  which  he  consents. 

Consent  is  said  to  be  given  freely  when  it  is  not  procured 
by  force,  fraud,  or  threats  of  whatever  nature. 

Article  225. 

right  to  consent  to   bodily   injury    for  surgical 
purposes. 

^  Every  one  has  a  right  to  consent  to  the  infliction  of  any 
bodily  injury  in  the  nature  of  a  surgical  operation  upon 
himself  or  upon  any  child  under  his  care,  and  too  young  to 
exercise  a  reasonable  discretion  in  such  a  matter,  but 
such  consent  does  not  discharge  the  person  performing  the 
operation  from  the  duties  hereinafter  defined  in  relation 
thereto. 

Article  226. 

surgical  operation  on  person  incapable  of  assent. 

(Submitted) — -  If  a  person  is  in  such  circumstances  as  to 
be  incapable  of  giving  consent  to  a  surgical  operation,  or  to 
the  infliction  of  other  bodily  harm  of  a  similar  nature  and 
for  similar  objects,  it  is  not  a  crime  to  perform  such  operation 
or  to  inflict  such  bodily  harm  upon  him  witliout  his  consent 
or  in  spite  of  his  resistance. 

1  I  know  of  no  authority  for  tlicse  propositions,  but  I  apprehend  they 
require  none.  The  existence  of  surgery  as  a  profession  assumes  their 
truth. 

2  See  the  last  note.     Draft  Code,  s.  67. 


THE   CRIMINAL   LAW  165 


Illustrations. 

(1.)  A  is  rendered  insensible  by  an  accident  which  makes  it 
necessary  to  amputate  one  of  his  limbs  before  he  recovers  his 
senses.  The  amputation  of  his  limb  without  his  consent  is  not 
an  offence. 

(2.)  If  the  accident  made  him  mad,  the  amputation  in  spite 
of  his  resistance  w-ould  be  no  offence. 

(3.)  B  is  drowning  and  insensible.  A,  in  order  to  save  his 
life,  pulls  B  out  of  the  water  with  a  hook  which  injures  him. 
This  is  no  offence. 


Article  227. 

right  to  consent  to  bodily  injury  short  of  maim. 

^  Every  one  has  a  right  to  consent  to  the  infliction  upon 
himself  of  bodily  harm  not  amounting  to  a  maim.  A  maim 
i.s  bodily  harm  whereby  a  man  is  deprived  of  the  use  of  any 
member  of  his  body  or  of  any  sense  which  he  can  use  in 
fighting,  or  by  the  loss  of  which  he  is  generally  and  perma- 
nently weakened,  but  a  bodily  injury  is  not  a  maim  merely 
because  it  is  a  disfigurement. 


Illustration. 

(1.)   It  is  a  maim    to  strike  out  a  front   tooth.      It  is  not  a 
maim  to  cut  off  a  man's  nose.      Castration  is  a  maim. 


Article  228. 

NO    IUOHT   to   CONSENT   To    INFLICTION    OF   DEATH. 

2  No  one  has  a  right  to  consent  to  the  infliction  upon  him- 
.self  of  death,  or  of  an  injury  likely   to  cause  death,  in  any 

'  The  poBitivu  purl  of  Uijh  Article  is  jjioved  tliUH  : — InjiiriuH  hIioi  1  of 
iiiuiiiiH  arc  iiol  (jriiiiiiiul  ut  coiiiiiioii  liiw  uiiIchh  they  are  uHsaultH,  )>ul  an 
.'iHwiult  i.H  iiieoiiHi.steiit  witli  CDiiHciit.  Ah  to  tlie  deliiiitioii  of  a  iiiaiiii,  see 
1   Hawk.  I'.  (J.   107.      He  expreHHly  ineiitioiiH  cuHtratioii. 

-    I)i;ifl  Code,  »,  W. 


166  A    DIGEST   OF 


case  (other  than  those  mentioned  in  Article  225),  or  to  con- 
sent to  the  infliction  u})(in  himself  of  bodily  harm  amounting 
to  a  maim,  for  any  purpose  injurious  to  the  public. 

Illusti'ations. 

(1.)  ^  A  and  B  agree  to  fight  a  duel  together  with  deadly 
weapons.  If  either  is  killed  or  wounded  his  consent  is  imma- 
terial. 

(2.)  -  A  gets  B  to  cut  off  A's  right  hand,  in  order  that  A  may 
avoid  labour  and  be  enabled  to  beg.  Both  A  and  B  commit  an 
offence. 

Article  229. 

no  right  to  consent  to  injury  constituting  a  breach 
of  the  peace. 

^  No  one  has  a  right  to  consent  to  the  infliction  of  bodily 
harm  upon  himself  in  such  a  manner  as  to  amount  to  a 
breach  of  the  peace,  or  in  a  prize-fight  or  other  exhibition 
calculated  to  collect  together  disorderly  persons. 

Article  230. 

consent  to  be  put  in  danger. 

*  It  is  uncertain  to  what  extent  any  person  has  a  right  to 
consent  to  his  being  put  in  danger  of  death  or  bodily  harm 
by  the  act  of  another. 

1  B.  V.  Barronct,  1852,  D.  &  P.  51.  The  law  has  never,  I  believe,  I^eeii 
disputed.  It  is  also  immaterial  whether  the  duel  is  or  is  not  what  is 
called  fair.     See,  too,  authorities  as  to  suicide.  Article  248. 

^  1  Inst.  107  a,  b.  I  think  the  qualification  in  the  Article,  "  for  any 
purpose  injurious  to  the  public,"  must  be  supplied.  It  seems  absurd  to 
say  that  if  A  gets  a  dentist  to  pull  out  a  front  tooth  of  A's  because  it  is 
unsightly,  though  not  diseased,  A  and  the  dentist  both  commit  a  misde- 
meanour. When  it  was  an  essential  part  of  a  common  soldier's  drill  to 
bite  cartridges  I  believe  that  it  was  not  an  uncommon  military  offence  to 
get  the  front  teeth  pulled  out,  and  this  would,  I  presume,  be  an  offence  at 
common  law  also. 

3  Foster,  260  ;  1  East,  270  ;  R.  v.  Billingham,  1825,  2  C.  &  P.  234  ; 
B.  v.  Ptrkim,  1831,  4  C.  &  P.  537  ;  B.  v.  Coimj,  1882,  8  Q.  B.  D.  534. 

*  There  is,  so  far  as  I  know,  no  authority  on  this  point,  but  the  prin- 


THE   CRIMINAL   LAW  167 


Ilhistration. 

(1.)  A,  with  B's  consent,  wheels  B  in  a  barrow  along  a  tight- 
rope at  a  great  height  from  the  ground.  C  hires  A  and  B  to  do 
so  ;  D,  E,  and  F  pay  money  to  C  to  see  the  performance.  B  is 
killed. 

Qucure,  are  x\,  C,  D,  E,  and  F,  or  any  and  which  of  them, 
guilty  of  manslaughter  ? 

Article  231. 

accidental  infliction  of  bodily  injury  by  lawful  act — 
what  acts  are  lawful. 

^  It  is  not  a  crime  to  cause  death  or  bodily  harm  acciden- 
tally by  an  act  which  is  not  unlawful,  unless  such  act  is 
accompanied  by  an  omission,  amounting  to  culpable  negli- 
gence, as  defined  in  Article  232,  to  perform  a  legal  duty 
imposed  either  by  law  or  by  contract  on  the  person  who  does 
the  act. 

An  effect  is  said  to  be  accidental  when  the  act  by  which 
it  is  caused  is  not  done  with  the  intention  of  causing  it, 
and  when  its  occurrence  as  a  consequence  of  such  act  is  not 
so  probable  that  a  person  of  ordinary  prudence  ought,  under 
the  circumstances  in  which  it  is  done,  to  take  reasonable 
precautions  against  it. 

The  words  "  unlawful  act "  include — 

(i.)  acts  punishable  as  crimes  [or  involving  penalties] ; 

(ii.)  -  acts  constituting  actionable  wrongs ; 

(iii.)  ^  acts  contrary  to  public  policy  or  morality,  or  in- 
jurious to  the  public. 

ciple  on  wliich  prize-fights  have  been  held  to  be  illegal  iiiighL  inchidc  siu^h 
a  case.  Such  an  exhibition  might  also  under  circumstances  be  a  public 
nuisance.  To  collect  a  large  numljcr  of  people  to  see  a  man  put  liis  life 
in  jeopardy  is  a  less  coarse  and  boisterous  proceedmg  than  a  prize-figiit, 
Ijut  is  it  less  immoral  ? 

'  1  Hale,  471,  &c.  ;  Foster,  258  ;  1  East,  P.  C.  2G0  ;  1  Kuss.  Cr.  844. 
I  cannot  give  any  [)recise  autiiority  as  to  acts  involving  penalties. 

^  1  Russ.  Cr.  812-21,  for  eases:  see  especially  the  summing  up  of 
Tin.lal,  C..J.,  in  Kenton's  case,  18:19,  1  Lew.  179;  1  Kuss.  Va:  817. 
Hale,  Kast,  and  Foster  make  a  distinction  between  mula  in  nt  and  intila 
j/rohihila,  which  I  think  can  no  longer  be  regardeil  as  law. 

'  Sec  authorities  for  Aitide  229. 


168  A    DIGEST   OF 


Other  acts  arc  not  unlawful  within  the  meaning  of  this 
Article,  though  they  may  involve  private  iinniorality. 

Illustrations. 

(1.)  ^  A,  a  schoohnaster,  corrects  a  scholar  in  a  manner  not 
intended  or  likely  to  injure  him,  using  due  care.  The  scholar 
dies.     Such  a  death  is  accidental. 

(2.) "'  A  turns  B,  a  trespasser,  out  of  his  house,  using  no  more 
force  than  is  necessary  for  that  purpose.  B  resists,  but  without 
striking  A.  They  fall  in  the  struggle  and  B  is  killed.  Such  a 
death  is  accidental. 

(3.)  ^  A,  a  workman,  throws  snow  from  a  roof,  giving  proper 
warning.  A  passenger  is  nevertheless  killed.  Such  a  death  is 
accidental. 

(4.)  ^  A  takes  up  a  gun,  not  knowing  whether  it  is  loaded  or 
not,  points  it  in  sport  at  B  and  pulls  the  trigger.  B  is  shot 
dead.  Such  a  death  is  not  accidental.  If  A  had  had  reason  to 
believe  that  the  gun  was  not  loaded,  the  death  would  have  been 
accidental,  although  he  had  not  used  every  possible  precaution  to 
ascertain  whether  the  gun  was  loaded  or  not. 

(5.)  ■*  A  seduces  B,  who  dies  in  her  confinement.  The  seduc- 
tion, though  an  immoral,  is  not  an  unlawful  act  within  the 
meaniufj  of  this  Article. 


1  1  Hale,  473.  The  same  law  of  course  applies  to  all  cases  of  lawful 
correction.  It  would  also,  I  think,  apply  to  Illustration  (2),  and  to  all 
other  cases  in  which  force  is  lawfully  applied  by  one  person  to  tlie  person 
of  another.  It  is,  of  course,  impossible  in  a  work  like  this  to  attempt 
an  enumeration  of  tliose  cases. 

2  Founded  on  Foster,  262. 

3  Founded  on  Foster,  263.  In  one  of  the  cases  referred  to  in  Foster, 
the  prisoner  was  convicted  of  manslaughter,  although  he  had  tried  the 
pistol  with  the  rammer.  Foster,  with  reason,  thinks  this  "  an  extremely 
hard  case."  Dixon  v.  Bell,  1816,  5  M.  &  S.  198,  may  be  taken  as  illus- 
trating the  line  between  negligence  for  which  a  man  is  civilly  and 
negligence  for  ^Wiich  he  is  criminally  responsible.  A  in  this  case  had 
caused  the  priming  to  be  taken  from  a  loaded  gun,  and  left  it  in  a  place 
where  a  little  girl  playing  with  it  sliot  a  little  boy.  The  boy  recovered 
damages  against  A,  but  if  he  had  died  I  do  not  think  A  would  have  been 
guilty  of  felony.      The  case  is  just  on  the  line. 

*  No  one  ever  suggested  that  this  would  be  manslaughter,  but  it  exactly 
marks  the  distinction  between  illegality  and  immorality. 


THE    CRIMINAL    LAW  169 


CHAPTER  XXII. 

OF  CULPABLE  NEGLIGENCE  AND   OF  DUTIES   TENDING 

to  the  preservation  of  life 

Article  232. 

death  or  bodily  injury  caused  by  omission  to 
discharge  a  legal  duty. 

^  Every  one  upon  whom  the  hiw  imposes  any  duty,-  or  who 
has  by  contract  or  by  any  wrongful  act  taken  upon  liimself 
any  duty,  tending  to  the  preservation  of  life,  and  who 
neglects  to  perform  that  duty,  and  thereby  causes  the  death 
of  any  person,  commits  the  same  offence  as  if  he  had  caused 
the  same  effect  by  an  act  done  in  the  state  of  mind,  as  to 
intent  or  otherwise,  which  accompanied  the  neglect  of  dut}^ 

Provided,  that  no  one  is  deemed  to  have  committed  a 
crime  only  because  he  has  caused  the  death  of  or  bodily 
injury  to  another  by  negligence  which  is  not  culpable.  What 
amount  of  negligence  can  be  called  culpable  is  a  question  of 
degree  for  the  jury,  depending  on  the  circumstances  of  each 
particular  case.  An  intentional  omission  to  discharge  legal 
duty  always  constitutes  culpable  negligence. 

Provided,  also,  that  no  one  is  deemed  to  have  committed 

1  The  first  part  of  this  Article  is  illustrated  by  all  the  Illustrations  of 
the  otlier  Articles  in  the  chapter.  The  whole  subject  is  treated  at  great 
length  in  Wharton  on  Homicide,  chapter  iv.  s.  72,  p.  166.  Dr.  Wharton 
classifies  negligent  homicide  under  the  following  licads  (generalities  apart)  : 

1.  Use  of  dangerous  things.  6.   The  ca^i  of  children,  &c. 

2.  Dropping  tilings  on  roails.  7.    The  care  of  medical  men. 
.S.    Management  of  railroads  and  steamers.    8.   Dangerou.s  macliinery. 

4.    Killing  and  driving.  9.    Atldctic  s])()rts. 

.5.    The  care  of  dangerous  animals.  10.    ('onclusion. 

I  have  carefully  gone  through  the  ihapter,  and  I  think  the  wliole 
of  it  is  only  a  set  of  iiluslralionK  of  tlie  principles  slated  in  tliis  and  in 
the  concluding  Articles  of  the  preceding  chapter.  It  should  l>c  observed 
that  tlie  word  "negligence"  excludes  intention.  The  very  slightest 
omiHsion  of  caution  in  order  to  cause  death  wouhl  constitute  malice 
aforethought  if  death   were  caused   tliereby. 

^  Draft  iUAv,  m.  164. 


170  A    DIGEST   OF 


a  crime  by  reason  of  the  negligence  of  any  servant  or  agent 
employed  by  him. 

^  Provided  also  that  it  must  be  shown  that  death  not  only 
follows  but  is  also  caused  by  the  neglect  of  duty. 


Illustrations. 

(1.)  "  It  is  A's  duty,  by  contract,  as  the  banksman  of  a  col- 
liery shaft,  to  put  a  stage  on  the  mouth  of  the  shaft  in  order  to 
prevent  loaded  trucks  from  falling  down  it.  A  omits  to  do  so, 
either  carelessly  or  intentionally.  A  truck  falls  down  the  shaft 
and  kills  B.  A  is  in  the  same  position  as  if  he  had  pushed  the 
truck  down  the  shaft  carelessly  or  intentionally. 

(2.)  •*  A  slings  a  cask  in  a  manner  which  is  reasonably  suffi- 
cient for  public  safety.  The  cask  slips  and  kills  B.  A  is  not 
criminally  responsible  merely  because  he  omitted  to  take  further 
precautions. 

(3.)  *  A  leaves  an  unloaded  gun  leaning  against  a  wall  in  a 
friend's  room.  In  his  absence  B  loads  it  and  leaves  it  loaded 
where  he  found  it.  A  points  it  in  sport  at  C  and  pulls  the 
trigger.  The  gun  goes  off  and  kills  C.  A  is  not  criminally 
responsible  merely  because  he  did  not  examine  the  gun  before  he 
pulled  the  trigger. 

(4.)  ■''  A,  the  captain  of  a  steamer,  sets  B  to  keep  a  look-out. 
B  fails  to  do  so,  whereby  the  steamer  runs  down  a  smack  and 
drowns  C.  A  is  not  criminally  responsible  for  B's  omission  to 
look  out. 

(5.)  ^  A,  acting  as  a  surgeon,  physician,  or  midwife,  causes  the 
death  of  a  patient  by  improper  treatment,  arising  from  ignorance 
or  inattention.  A  is  not  criminally  responsible,  unless  his  ignor- 
ance, or  inattention,  or  rashness  is  of  such  a  nature  that  the 
jury  regard  it  as  culpable  under  all  the  circumstances  of  the  case. 
It  makes  no  difference  whether  A  is  or  is  not  a  properly  qualified 
practitioner. 

(6.)  ^  A,  by  his  servants,  makes  fireworks  in  his  house  con- 


1  Illustration  (7). 

^  R.  V.  Hughes,  1857,  D.  &  B.  248. 

^  Bigmaiden's  Case,  1833,  1  Lew.  180.     Probably  in  such  a  case  there 
would  be  a  civil  liability  ;  see  Byrne  v.  Boodle,  1863,  2  H.  &  C.  722. 
4  Foster,  265. 

6  B.  V.  Allen,  1835,  7  C.  &  P.  153  ;  i?.  v.  Green,  1835,  7  C.  &  P.  156. 

«  E.  V.  Van  Butchdl,  1829,  3  C.  &  P.  629  ;  B.  v.  St.  John  Long  (1st 
case),  1830,  4  C.  &  P.  398  ;  (2nd  case),  1831,  4  C.  &  P.  423  ;  R.  v. 
Williamson,  1807,  3  C.  &  P.  635,  n. 

7  B.  V.  Bennett,  1858,  Bell  C.  C.  1. 


THE   CRIMINAL   LAW  171 

trary  to  the  pro^dsions  of  an  Act  of  Parliament.  The  servants 
by  culpable  negligence  cause  an  explosion  which  kills  B.  A  is 
not  criminally  responsible  for  B's  death. 

(7.)  ^  A,  being  under  a  legal  duty  to  supply  medical  aid  for 
his  son  B,  who  has  confluent  small  pox,  refuses  to  do  so  from 
religious  motives,  and  B  dies.  It  must  be  shown  that  B's  life 
would  probably  have  been  prohmged  if  medical  aid  had  been 
provided,  before  A  can  be  convicted  of  manslaughter. 


Article  233. 

causing  death  by  omissions  other  than  those 
mentioned  in  article  232. 

-  It  is  not  a  crime  to  cause  death  or  bodily  injury,  even 
intentionally,  by  an  omission  other  than  those  referred  to  in 
the  last  Article. 

Illustration. 

(1.)  A  sees  B  drowning  and  is  able  to  save  him  by  liolding 
out  his  liand.  A  abstains  from  doing  so  in  order  that  B  may 
be  drowned,  and  B  is  drowned.      A  has  committed  no  offence. 


Article  234. 

duty  to  provide  necessaries  of  life. 

^  Every  person  under  a  legal  duty,  whether  by  contract  or 
by  law,  or  by  the  act  of  taking  charge,  wrongfully  or  other- 
wise, of  another  person,  to  provide  the  necessaries  of  life  for 
such  other  person,  is  criminally  responsible  if  death  is  caused 
by  the  neglect  of  that  duty,  and  if  the  person  to  whom  the 
duty  is  owing  is,  from  age,  health,  insanity,  or  any  otlur 
cause,  unable  to  withdraw  himself  from  the  conliul  of  the 
person  from  whom  it  is  due,  but  not  otherwise. 

'    R.  V.  Mi.rhy,  18S2,  S  Q.   I{.   I).  T)?). 

''■  n.  V.  Smith,  I8'2(i,  2  (J.  &  1'.  449.  TIiIh  hii1)JwI  is  diHiUHHcd  in  a 
Htrikiiifi  iniiimer  liy  Lord  Muciiulay  in  liJH  notcH  on  tin;  Iiiilian  I'eiiiil  VauXh  ; 
Hcc,  t<Kj,  Whuilon  on  HoMii<;ide,  §  72. 

•*  See  cu»e8  in  IlluntnitionH.      Draft  Code,  hh.   L"!!)  (ii. 


172  A    DIGEST   OF 


Some  of  the  duties  of  masters  towards  apprentices  and 
of  parents  towards  children  are  defined  in  Articles  260  and 
283-286. 

Ilhistrations. 

(1.)  ^  A  neglects  to  find  proper  food  and  lodging  for  her 
servant,  B  (who  is  of  weak  mind,  but  twenty-three  years  old). 
B's  life  is  shortened  by  such  neglect.  A  is  criminally  respon- 
sible if  B  was  in  such  an  enfeebled  state  of  body  and  mind  as  to 
be  helpless  and  unable  to  take  care  of  herself,  or  was  under  the 
dominion  and  restraint  of  A,  and  unable  to  withdraw  herself 
from  A's  control ;  otherwise  not. 

(2.)  -  B,  a  girl  of  eighteen,  comes  from  service  to  the  house  of 
her  mother.  A,  and  is  there  confined  of  a  bastard  child.  A  does 
not  provide  a  midwife,  in  consequence  of  which  B  dies.  A  is 
not  criminally  responsible  for  this  omission. 

(3.)  ^A  persuades  B,  an  aged  and  infirm  woman,  to  live  in 
his  house,  and  causes  her  death  by  neglecting  to  supply  her 
properly  with  food  and  fire,  she  being  incapable  of  providing 
for  herself  from  age  and  infirmity.  A  is  criminally  responsible 
for  his  neglect. 

Article  235. 

delegation  of  duty  defined  in  article  234. 

If  a  person  delegates  the  discharge  of  the  duty  mentioned 
in  the  last  Article  to  his  wife  or  to  a  servant,  and  supplies 
such  wife  or  servant  with  the  means  of  discharging  the 
duties  so  delegated,  it  is  the  legal  duty  of  such  wife  or 
servant  to  discharge  such  duties,  and  it  is  the  legal  duty  of 
the  man  who  delegates  them  to  use  ordinary  care  to  see  that 
they  arc  properly  discharged. 

Illustration. 

^  A,  the  sister  of  B's  deceased  wife,  acts  as  B's  housekeeper, 
and  neglects  to  give  to  B's  infant  child  food  duly  provided  by  B, 


'   R.    V.    Charlotte  Smith,    1865,  L.    &   C.    607  ;  and  see  R.   v.  In-staii, 
infra. 

2  R.  V.  Shepherd,  1862,  L.  &  C.  147. 

3  R.   V.   Marriott,    1838,   8  C.  &  P.   425  ;  R.  v.  Instan,  1893,  1  Q.  B. 
450. 

*   /.'.   V.  Bubh,  and  R.   v.  Hook,   1861,  4  Cox,  C.   C.   455;   1  Russ.  Cr. 
681,  2. 


THE   CRIMINAL    LAW  173 

and  so  causes  its  death.  A  is  criminally  responsible  for  this 
neglect.  If  B  knew  of  A's  neglect,  and  permitted  her  to  con- 
tinue it,  he  is  also  responsible,  but  not  otherwise. 

Article  236. 

when  direct  performance  of  duty  impossible. 

^  It  is  the  legal  duty  of  a  person,  who  is  unable  to  provide 
for  any  person  necessaries  which  he  is  legally  bound  to  pro- 
vide for  him,  to  make  application  to  the  proper  authorities 
for  parochial  relief  in  cases  in  which  such  authorities  are 
legally  bound  to  furnish  such  relief 

Article  237. 

duty  of  care  in  doing  dangerous  acts. 

2  It  is  the  legal  duty  of  every  one  who  does  any  act  which 
without  ordinary  precautions  is,  or  may  be,  dangerous  to 
human  life,  to  employ  those  precautions  in  doing  it. 

Ilhistrations. 

(1.)  ^  It  is  the  duty  of  persons  having  charge  of  dangerous 
things,  animals,  or  machinery  to  take  care  of  them. 

(2.)  ^  Workmen  are  employed  to  throw  snow  off  the  roof  of  a 
house.  It  is  their  duty  to  sec  whether  people  are  passing,  and 
to  give  warning  before  they  throw  it  down. 

(3.)  ^  It  is  the  duty  of  people  riding,  driving,  or  sailing,  to  be 
careful. 

(4.)  *  A  turns  out  a  vicious  horse  to   graze  on  a   common  on 


»  R.  V.  Muhhett,  18.51,  5  Cox,  C.  C.  339  ;  I  Russ.  Cr.  683. 

2  How  far  can  it  be  said  to  he  a  legal  duty  to  abstain  from  doing  sucli 
acts  wantonly  even  with  piecautioiiH  ?  .Suppose  a  man,  merely  for  lii.s 
own  amuKenient  or  from  cajjrice,  tortk  a  dangerous  wild  beast  into  a  public 
street,  using  all  projicr  precautions,  and  sup])ose  the  wild  beast  notwith- 
standing broke. loose  and  killed  some  one,  would  this  be  manslaughter? 
I  knfjw  of  no  authority  on  tlie  suliject.      See  Draft  (.'ode,  s.   Ki'J.* 

3  Casew  coUecte.l  in  Wh.irton  on  Homicide,  §§  «7-l)3,  9'.»,  l-Jo,  107  '-'I  ; 
and  Hce  !  Kukh.  Cr.  822-840. 

<   /.'.  V.  JJant,  186;>,  L.  &C.  oUT. 


174  A    DIGEST  OF 


which  people  are  likely   to  pass.     It  is  his  duty  to  take  proper 
precautions  against  its  injuring  passers-by. 

(5.)  ^  A,  B,  and  C  went  to  practise  with  a  ritle  which  carried 
a  mile.  A  handed  a  board  to  B,  who  in  C's  presence  fixed  it  in 
a  tree,  and  they  all  fired  at  it  at  a  distance  of  1 00  yards,  taking 
no  precautions  to  prevent  mischief  to  persons  in  the  neighbour- 
hood. One  of  the  shots  killed  a  boy  in  a  tree  about  200  yards 
behind  the  target.      All  were  held  guilty  of  manslaughter. 


Article  238. 

duty  of  persons  doing  acts  requiring  special  skill  or 
knowledge.  • 

2  It  is  the  legal  duty  of  every  person  who  undertakes  (ex- 
cept in  case  of  necessity)  to  administer  surgical  or  medical 
treatment,  or  to  do  any  other  lawful  act  of  a  dangerous 
character,  which  requires  special  knowledge,  skill,  atten- 
tion, or  caution,  to  employ  in  doing  it  a  common  amount  of 
such  knowledge,  skill,  attention,  and  caution. 

1  B.  V.  Salmon  db  Other-s,  1880,  6  Q.  B.  D.  79.  My  judgment  was 
nearly  in  the  terms  of  Article  237,  and  the  other  judgments  were  to  the 
same  effect. 

2  R.  V.  ,S";.  John  Long,  1830,  4  C.  &  P.  at  404.  (Per  Garrow,  B.)  As 
to  caution,  see  R.  v.  St.  John  Long,  2nd  case,  4  C.  &  P.  at  440  ;  see  other 
cases  collected  in  1  Russ.  Cr.  672-6.      Draft  Code,  s.  162. 


THE    CRIMINAL   LAW  175 


CHAPTER  XXIII 

HOMICIDE 

Article  239. 
homicide  defined — when  a  child  becomes  a  human 

BEING. 

^  Homicide  is  the  killing  of  a  human  being  by  a  human 
being. 

^  A  child  becomes  a  human  being  within  the  meaning  of 
this  definition,  Avhen  it  has  completely  proceeded  in  a  living 
state  from  the  body  of  its  mother,  ^  whether  it  has  or  has 
not  breathed,  ^  and  whether  the  navel  string  has  or  has  not 
been  divided,  ^  and  the  killing  of  such  a  child  is  homicide, 
whether  it  is  killed  by  injuries  inflicted  before,  during,  or 
after  birth. 

^  A  living  child  in  its  mother's  womb,  or  a  child  in  the  act 
of  birth,  even  though  such  child  may  have  breathed,  is  not  a 
human  being  within  the  meaning  of  this  definition,  and  the 
killing  of  such  a  child  is  not  homicide. 

Article  240. 

KILLING   defined. 

"^  Killing  is  causing  the  death  of  a  person  by  an  act  or 
onii.ssion  but  for  which  th<!  }>erson  killed  would    not    have 

•   Draft  CVmIc,  ss.  16.">,  16G. 

-i  R.  V.  Poidton,  1832,  5  C.  &  P.  .S29. 

3  R.  V.  Brain,  1834,  6  C.  &  1'.  .S4y. 

<  R.  V.  TriUot,  1842,  Car.  &  Mar.  650. 

''  AuthoriticH  collecte<l,  1  Rush.  Cr.  646. 

«  //.  V.  Euorh,  1833,  ')  C.  &  ]'.  r)3!»,  and  see  note  to  the  case  ;  A',  v. 
Wri'jht,  1841,  9  C.  &  V.  754  ;  R.  v.  .SW/tr,  1837,  7  C  &  1'.  850. 

"^  See  Draft  Code,  bb.  167-173.  Dr.  Wliarton's  work  on  Homicide 
contuiiiH  an  InttireHting  and  elul<orat<j  chapter  (<;ii.  xii.  §>i  3r)8  389),  entitled 
"  CauBal  (Connection,"  into   which  Home  diacUHsion  ia  introduce<l   on  tliu 


176  A    DIGEST   OF 


(lii'd  when  he  did,  and  which  is  directly  and  innncdiately 
connected  with  his  death.  The  question  whether  a  given 
act  or  omission  is  directly  and  immediately  connected  with  the 
death  of  any  person  is  a  question  of  degree  dependent  upon 
the  circumstances  of  each  particular  case. 

(SuBJiiTTED.)  But  the  conduct  of  one  person  is  not  deemed 
for  the  purposes  of  this  Article  to  be  the  cause  of  the 
conduct  of  another,  if  it  affects  such  conduct  only  by  way 
of  supplying  a  motive  for  it,  and  not  so  as  to  make  the  first 
person  an  accessory  before  the  fact  to  the  act  of  the  other. 

This  Article  is  subject  to  the  provisions  contained  in  the 
next  two  Articles. 


distinction  between  causes  and  conditions  ;  a  distinction  of  which  Dr. 
Wiiarton  maintains,  and  of  which  Mr.  Mill  (see  his  Logic,  vol.  i.  p.  398, 
&c.)  denies  the  solidity.  For  practical  piirposes,  I  think  the  Article  in 
the  text  is  sufficient.  And  if  this  were  the  proper  place,  I  should  be  dis- 
posed to  discuss  some  of  Dr.  Wharton's  positions.  The  latter  part  of  the 
Article  and  the  Illustration  (7)  intended  to  explain  it  must,  I  think,  be 
law  ;  but  I  know  of  no  direct  authority  on  the  subject.  The  maxim  "  In 
jure  non  remota  causa  sed  proxima  spectatur  "  has  no  doubt  a  bearing  on 
the  subject  (see  Bacon's  Maxims,  35-9,  and  Broom's  Maxims,  216-30), 
but  it  is  very  vague.  Lord  Bacon  says  it  does  not  apply  to  "criminal 
acts  except  they  have  a  full  interruption."  His  illustration  is, — A  fires  a 
pistol  at  B,  and  misses  him,  and  runs  away.  B  pursues  A.  A  stabs  B 
with  a  dagger.  "If  the  law  should  consider  the  last  impulsive  cause,  it 
should  say  it  was  in  his  own  defence,  but  the  law  is  otherwise,  for  it  is 
but  a  pursuance  and  execution  of  the  first  murderous  intent."  Surely  in 
this  case  the  stab  is  the  immediate  cause  of  B's  death  ;  A's  state  of  mind 
is  another  matter,  and  is  to  be  inferred  from  facts.  The  law  as  to  acces- 
sories and  incitement  appears  to  show  the  limit  to  which  participation  in 
a  crime  can  be  carried.  Unless  the  line  is  drawn  there  it  is  impossible  to 
say  how  far  it  would  extend.  Illustration  (7)  is  a  prosaic  version  of 
Othello.  lago,  however,  in  Act  iv.  sc.  1,  says  when  asked  to  give  poison, 
"  Do  it  not  with  poison,  strangle  her  in  her  bed."  This  would  clearly 
make  him  an  accessory.  To  take  a  humbler  instance,  the  catastrophe  of 
Oliver  Twist  might,  perhaps,  fall  within  Illustration  (7).  In  ch.  xlvii.  of 
that  work,  Fagin,  after  getting  Sikes  to  say  he  would  murder  any  one 
who  should  betray  him,  wakes  up  Noah  Claypole  and  makes  him  tell  Sikes 
that  the  girl  Nancy  had  betrayed  him,  and,  as  Sikes  rushed  out  in  a 
passion,  says,  "You  won't  be  too  violent.  Bill;  I  mean  not  too  violent 
for  safety."  I  think  that  the  whole  conversation  taken  together  would 
be  evidence  to  go  to  a  jury,  that  Fagin  did  '  counsel '  or  '  procure  '  the 
murder  committed  by  Sikes,  which  would  make  him  an  accessory  before 
the  fact,  but  if  lie  had  confined  himself  to  merely  telling  Sikes  wliat  Clay- 
pole  said  he  had  heard,  it  would  not  iiave  been  enough.  After  all  there 
was  only  the  uncorroborated  testimony  of  an  accomplice  to  prove  what  he 
said,  and  Claypole  does  not  seem  to  have  been  by  when  the  most  damaging 
words  were  spoken. 


THE    CRIMINAL    LAW  177 


Illusfratioiis. 

(1.)  ^  A  substitutes  poison  for  medicine,  which  is  to  be  cad- 
ministered  to  C  by  B.  B  innocently  administers  the  poison  to 
C,  who  dies  of  it.     A  has  killed  C. 

(2.)  ^  A  gives  a  poisoned  apple  to  his  wdfe  B,  intending  to 
poison  her.  B,  in  A's  presence,  and  with  his  knowledge,  gives 
the  apple  to  C,  their  child,  whom  B  did   not   intend   to   poison. 

A,  not  interfering,  C  eats  the  apple  and  dies.      A  has  killed  C. 
(3.)  ^  A,   an    ironfounder,  ordered  to  melt  down  a  saluting 

cannon  which  had  burst,  repairs  it  with  lead  in  a  dangerous 
manner.  Being  fired  with  an  ordinary  charge,  it  bursts  and 
kills  B.     A  has  killed  B. 

(4.)  *  A  lived  with  and  was  maintained  by  B,  her  aunt,  who 
was  ill  for  ten  days  previous  to  her  decease,  during  which  time  A 
took  in  the  food  supplied  by  tradesmen,  but  gave  none  of   it  to 

B,  nor  did  she  procure  medical  assistance  or  tell  any  one  of  the 
state  of  B,  who  died  from  exhaustion  caused  by  gangrene,  her 
death  being  accelerated  by  neglect,  and  want  of  food,  nursing, 
and  medical  attendance.     A  has  killed  B. 

(5.)  ^A,  B,  and  C,  road  trustees  under  an  Act  of  Parliament, 
and  as  such  under  an  obligation  to  make  contracts  for  the  repairs 
of  the  road,  neglect  to  make  any  such  contract,  whereby  the  road 
gets  out  of  repair,  and  D  passing  along  it  is  killed.  A,  B,  and 
C  have  not  killed  B. 

(6.)  ^  A  by  his  servants  makes  fireworks  in  a  house  in  London 
contrary  to  the  provisions  of  an  Act  of  Parliament  (9  &  10 
"Will.  .3,  c.  77).  Through  the  negligence  of  his  servants,  and 
without  any  act  of  his,  a  rocket  explodes  and  sets  fire  to  another 
house  whereby  B  is  killed.     A  has  not  killed  B. 

(7.)  A  tells  B  facts  about  C  in  the  hope  that  the  knowledge 
of  those  facts  wnll  induce  B  to  murder  C,  and  in  order  that  C 
iii/iy  be  murdered  ;  but  A  does  not  advise  B  to  inurdei-  C  ;  15 
iiiiirdors  C  accordingly.      A  has  not  cau.sed  C's  death  within  tlu^ 


iiK.-aning  of  this  Article. 


Dondlan's  Cane.     See  my  Oen.  View,  CV.  L.  338. 

Saundern'  Caw,  1  Halo,  I'.  C.  43(5. 

li.  V.  Carr,  1S32,  S  (J.  &  1'.   I()3. 

li.  V.  liiHtaii,  1S93,  I  Q.  H.  4.-)(l. 

//.  V.  I'ocorL;  1 8.1 1,' 17  (.>.  15.  34. 

/.'.  V.   Rinnclt,   l8.-.S,;l',t;ll,  C.  (J.   1. 


178  A    D 10 EST   OF 


Article  241. 

when  an  act  is  the  remote  cause   of  death   or   one 
of  several  causes. 

A  person  is  deemed  to  have  committed  homicide,  although 
his  act  is  not  the  immediate  or  not  the  solo  cause  of  death, 
in  the  following  cases — 

(«.)  ^If  he  inflicts  a  bodily  injury  on  another  which  causes 
surgical  or  medical  treatment,  which  causes  death.  In  this 
case  it  is  immaterial  whether  the  treatment  was  proper  or 
mistaken,  if  it  was  employed  in  good  faith,  and  with  common 
knowledge  and  skill,  but  the  person  inflicting  the  injury 
is  not  deemed  to  have  caused  the  death  if  the  treatment 
which  was  its  immediate  cause  was  not  employed  in  good 
faith,  or  was  so  employed  without  common  knowledge  or 
skill. 

(b.)  2  If  he  inflicts  a  bodily  injury  on  another,  which  would 
not  have  caused  death  if  the  injured  person  had  submitted 
to  proper  surgical  or  medical  treatment,  or  had  observed 
proper  precautions  as  to  his  mode  of  living. 

(c.)  ^  If  by  actual  violence  or  threats  of  violence  he  causes 
a  person  to  do  some  act  which  causes  his  own  death,  such 
act  being  a  mode  of  avoiding  such  violence  or  threats,  which 
under  the  circumstances  would  appear  natural  to  the  person 
injured. 

(d.)  ^  If  by  any  act  he  hastens  the  death  of  a  person  suffer- 
ing under  any  disease  or  injury  which  apart  from  such  act 
would  have  caused  death. 

(e.)  ^  If  his  act  or  omission  would  not  have  caused  death 
unless  it  had  been  accompanied  by  the  acts  or  omissions  of 
the  person  killed  or  of  other  persons. 

1  I  Hale,  428  ;  Illustrations  (I),  (2).     Draft  Code,  s.  173. 

2  Illustration  (3).     Draft  Code,  s.  172. 

3  Illustration  (4).     Draft  Code,  s.  167. 

4  1  Hale,  428  ;  Illustration  (.5).      Draft  Code,  s.  171. 

^  See  Illustrations  (6)  and  (7).  See  also  Ji.  v.  Lonijhottom,  1849,  3  Cox, 
C.  C.  439  ;  3  Russ.  Cr.:197,  8.  R.  v.  Ledger,  1862,  2  F.  &  F.  857  ;  and 
Mr.  Greaves'  note.     This  case  is  a  very  pecidiar  one. 


THE    CRIMINAL    LAW  179 


Illustrations. 

(1.)  ^  A  wounds  B  in  a  duel.  Competent  surgeons  pei-form 
an  operation  which  they  in  good  faitli  regard  as  necessary.  B 
dies  of  the  operation,  and  it  appears  that  the  surgeons  were 
mistaken  as  to  the  necessity  for  tlie  operation.     A  has  killed  B. 

(2.)  2  A  gives  B  a  wound.  C,  a  surgeon,  applies  poison  to  the 
wound,  either  from  bad  faith  or  by  negligence.  B  dies  of  the 
poison.      C  and  not  A  has  killed  B. 

(.3.)"^  A  injures  B's  finger.  B  is  advised  by  a  surgeon  to 
allow  it  to  be  amputated,  refuses  to  do  so  and  dies  of  lockjaw. 
A  has  killed  B. 

(4.)  ■*  A  violently  beats  and  kicks  B,  his  wife,  on  the  edge  of 
a  pond.  She,  to  avoid  his  violence,  throws  herself  into  the  pond 
and  is  drowned.      A  has  killed  B. 

(5.)  ^A  strikes  B,  who  is  at  the  time  so  ill  that  she  could 
not  possibly  have  lived  more  than  six  weeks  if  she  had  not  been 
struck.  B  dies  earlier  than  she  would  otherwise  have  died  in 
consequence.     A  has  killed  B. 

(6.)  *^A  and  B,  the  drivers  of  two  carts,  race  along  a  high 
road.  C  is  lying  drunk  in  the  middle  of  the  road.  One  or 
other  or  both  of  the  carts  run  over  C  and  kill  him.  In  either 
case  both  A  and  B  have  killed  C. 

(7.)  "^  It  is  the  duty  of  A  to  put  up  air  headings  in  a  colliery 
where  they  are  required.  It  is  the  duty  of  B  to  give  A  notice 
when  an  air  heading  is  required.  But  A  has  means,  apart  from 
B's  report,  of  knowing  whether  such  air  headings  are  required  or 
not.  A  omits  to  put  up  an  air  heading,  B  omits  to  give  A 
notice  that  one  is  wanted.  An  explosion  follows,  and  C  is  killed. 
Both  A  and  B  have  killed  C. 


>   R.  V.  Pym,  1846,  1  Cox  C.  C.  .3.39  ;   1  Russ.  Cr.  (57.J. 

-  Foundefl  on  1  Hale,  428. 

•1  R.  V.  Holland,  2  Moo.  aiul  Ro.  .3r)7. 

*  R.  V.  Erans,  1  Russ.  Cr.  6.51  ;  A',  v.  Wnrjer,  tried  at  Derliy  Suinmc  r 
Assizes,  1864,  was  precisely  similar.  See,  upon  this  subject,  Wharton  on 
Homieide,  §§  374-5.  If  tlie  intention  was  to  escape  furtlicr  ill-usage  by 
suicide,  the  case  would  be  altered. 

'  R.  V.  Fte/chcr,  1  Russ.  Cr.  076. 

8  R.  V.  Su'iitdall,  1846,  2  C.  &  K.  2.3f). 

■   A'.  V.  JIaintH,  1847,  2  C.  &  K.  .368. 


N    2 


180  A    DIGEST   OF 


Article  242. 
whex  causing  death  does  not  amount  to  homicide. 

A  person  is  not  deemed  to  have  committed  homicide, 
although  his  conduct  may  have  caused  death,  in  the  follow- 
ing cases : — 

(a.)  ^  When  the  death  takes  place  more  than  a  j^ear  and  a 
day  after  the  injury  causing  it.  In  computing  the  period 
the  day  on  which  the  injury  is  inflicted  is  to  be  counted  as 
the  first  day : 

(b.)  [It  is  said]  ^  When  the  death  is  caused  without  any 
definite  bodily  injury  to  the  person  killed ;  but  this  does  not 
extend  to  the  case  of  a  person  whose  death  is  caused  not  by 
any  one  bodily  injury,  but  by  repeated  acts  affecting  the 
body,  which  collectively  cause  death,  though  no  one  of  them 
by  itself  would  have  caused  death : 

1  1  East,  P.  C.  343,  4  ;  1  Russ.  Cr.  673,  4  ;  Draft  Code,  s.  169. 

-  I  Hale,  429.  Lord  Hale's  reason  is  that  "  secret  things  belong  to 
God  ;  and  hence  it  was  that  before  1  Ja.  I,  c.  12,  witchcraft  or  fascination 
was  not  felony,  because  it  wanted  a  trial"  (i.e.  I  suppose  because  of  the 
difficulty  of  proof).  I  suspect  that  the  fear  of  encouraging  prosecutions 
for  witchcraft  was  the  real  reason  of  this  rule.  Dr.  Wharton  rationalises 
the  rule  thus  :  "  Death  from  nerv^ous  causes  does  not  involve  penal  conse- 
quences." This  appears  to  me  to  substitute  an  arbitrary  quasi-scientific 
rule  for  a  bad  rule  founded  on  ignorance  now  dispelled.  Suppose  a  man 
were  intentionalh*  killed  by  being  kept  awake  till  the  nervous  irritation 
of  sleeplessness  killed  him,  might  not  this  be  murder?  Suppose  a  man 
kills  a  sick  person  intentionallj',  by  making  a  loud  noise  which  wakes  him 
when  sleep  gives  him  a  chance  of  life  ;  or  suppose  knowing  that  a  man  has 
aneurism  of  the  heart,  his  heir  rushes  into  his  room,  and  roars  in  his  ear, 
"Your  wife  is  dead  !"  intending  to  kill  and  killing  him,  whj'  are  not 
these  acts  murder  ?  They  are  no  more  "  secret  things  belonging  to  God  " 
than  the  operation  of  arsenic.  As  to  the  fear  that  by  admitting  that  such 
acts  are  murder,  people  might  be  rendered  liable  to  prosecution  In*  break- 
ing the  hearts  of  their  fathers  or  wives  by  bad  conduct,  the  answer  is  that 
such  an  event  could  never  be  proved.  A  long  course  of  conduct,  gradually 
"  bi'eaking  a  man's  heart,"  could  never  be  the  "direct  or  immediate" 
cause  of  death.  If  it  was,  and  it  was  intended  to  have  that  effect,  why 
should  it  not  be  murder?  In  li.  v.  Toivem,  1874,  12  Cox  C.  C.  530,  a  man 
was  tried  before  Denman,  J.,  for  manslaughter,  for  frightening  a  cliild  to 
death  (see  Wharton  on  Homicide,  §  372,  on  this  point). 

Lord  Hale  doubts  whether  voluntarilj'  and  maliciously  infecting  a  person 
with  the  plague,  and  so  causing  his  death,  would  l)e  murder  (i.  432).  It 
is  hard  to  see  why.  He  says  that  "  infection  is  God's  arrow."  A  different 
view  was  taken  in  the  analogous  case  of  J',  v.  Greenwood,  1857,  7  Cox, 
C.  C.  404,  and  1  Russ.  Cr.  673.  As  to  this  proviso,  see  Illustra- 
tion (1). 


TEE   CRUllKAL   LAW  181 

(c.)  [It  seems]  ^  When  death  is  caused  by  false  testimony 
given  in  a  court  of  justice. 

Illustrations. 

(1.)  -A  by  a  long  series  of  acts  of  ill-treatment,  no  one  of 
which  by  itself  would  cause  death,  causes  the  death  of  B.  A 
has  killed  B. 

(2.)^  A  and  B,  in  order  to  get  a  reward  offered  for  the 
conviction  of  highway  robbei's,  conspire  together  to  bring  a  false 
accusation  of  highway  robbeiy  against  C,  whereby  C  is  convicted 
and  executed.     A  and  B  do  not  kill  C. 


Article  243. 
when  homicide  is  unlawful. 

■*  Homicide  is  unlawful, 

(a.)  When  death  is  caused  by  an  act  done  with  the  inten- 
tion to  cause  death  or  bodily  harm,  or  what  is  commonly 
known  to  be  likely  to  cause  death  or  bodily  harm,  and  when 
such  act  is  neither  justified  nor  excused  by  the  provisions 
contained  in  Chapter  III.,  or  Chapter  XXI. ; 

(J.)  when  death  is  caused  by  an  omission,  amounting  to 
culpable  negligence,  to  discharge  a  duty  tending  to  the  pre- 
.servation  of  life,  whether  such  omission  is  or  is  not  accom- 
panied by  an  intention  to  cause  death  or  bodily  harm ; 

(c.)  when  death  is  caused  accidentally  by  an  unlawful  act. 

'   Illustration  (2).      Draft  Code,  s.  168. 

•-'  R.  V.  S,Jf,  1  East,  P.  C.  226,  227,  and  1  Russ.  Cr.  652,  777  ;  R.  v. 
Squire,  I  Russ.  Cr.  653. 

3  R.  V.  Mar  Daniel  and  Others,  175."),  19  S.  T.  746,  and  see  particularly 
tlie  note  810   14,  and   Foster,  131,  132. 

•  This  Article  sums  up  the  result  of  the  preeeding  chapters.  See  Note 
VII.      iJraft  Code,  s.  107. 


182  A    DIGEST   OF 


CHAPTER   XXIV 

1  murder— mansla  uohter— attempts  to  commit 
murder— concealment  of  birth 

Article  244. 
manslaughter  and  murder  defined. 

2 Manslaughter  is  unlawful  homicide  without  malice  afore- 
thought. 

Murder  is  unlawful  homicide  with  malice  aforethought. 

Malice  aforethought  means  any  one  or  more  of  the  follow- 
ing states  of  mind  preceding  or  co-existing  with  the  act  or 
omission  by  which  death  is  caused,  and  ^  it  may  exist  where 
that  act  is  unpremeditated. 

(a.)  An  intention  to  cause  the  death  of,  or  grievous  bodily 
harm  to,  any  person,  whether  such  person  is  the  person 
actually  killed  or  not ; 

{h.)  knowledge  that  the  act  which  causes  death  will  prob- 
ably cause  the  death  of,  or  grievous  bodily  harm  to,  some 
person,  whether  such  person  is  the  person  actually  killed  or 
not,  although  such  knowledge  is  accompanied  by  indifference 
whether  death  or  grievous  bodily  harm  is  caused  or  not,  or 
by  a  wish  that  it  may  not  be  caused  ; 

1  See  .3  Hist.  Cr.  Law,  ch.  xxvi.  pp.  1-107. 

2  For  the  authorities  for  this  Article  see  Note  VIII.  Draft  Code,  s. 
174-177. 

^  Coke's  first  case  of  implied  malice  is  malice  implied  from  the  want  of 
provocation.  A  man  who  wantonly  or  on  a  slight  cause  intentionally  and 
violently  kills  another,  shows  by  that  act,  not  indeed  the  existence  of 
hatred  of  long  standing,  but  the  existence  of  deadly  hatred  instantly  con- 
ceived and  executed,  wiiich  is  at  least  as  bad  if  not  worse.  This  in  the 
strict  sense  of  the  words  is  malice  aforethought.  As  Hobbes  well  ob- 
serves :  "it  is  malice  forethought,  though  not  long  forethought"  (Dia- 
logue of  the  Common  Laws,  "  Works,"  vi.  85).  And  it  is  not  by  law 
necessary  that  it  should  be  long.  If  a  slight  provocation  does  not  reduce 
murder  to  manslaugliter,  a  fortiori,  the  total  absence  of  all  provocation 
and  the  mere  rapidity  with  which  the  execution  of  a  cruel  and  wicked 
design  follows  on  its  conception  cannot  have  that  effect.  For  cases  of 
slight  provocation,  see  1  Rus=.  Cr.  676,  and  cases  there  collected. 


THE   CRIMINAL    LAW  183 


(c.)  an  intent  to  commit  any  felony  whatever ; 

(rf.)  an  intent  to  oppose  by  force  any  officer  of  justice  on 
his  way  to,  in,  or  returning  from  the  execution  of  the  duty 
of  arresting,  keeping  in  custody,  or  imprisoning  any  person 
whom  he  is  lawfully  entitled  to  arrest,  keep  in  custody,  or 
imprison,  or  the  duty  of  keeping  the  peace  or  dispersing  an 
unlawful  assembly,  provided  that  the  offender  has  notice  that 
the  person  killed  is  such  an  officer  so  employed. 

The  expression  "officer  of  justice"  in  this  clause  includes 
ever}^  person  who  has  a  legal  right  to  do  any  of  the  acts 
mentioned,  whether  he  is  an  officer  or  a  private  person. 

Notice  may  be  given,  either  by  words,  by  the  production 
of  a  warrant;  or  other  legal  authority  by  the  known  official 
character  of  the  person  killed,  or  by  the  circumstances  of  the 
case. 

This  Article  is  subject  to  the  provisions  contained  in 
Articles  245-247,  both  inclusive,  as  to  the  effect  of  pro- 
vocation. 

Illustrations. 

(1.)  ^  A  knowing  that  B  is  suffering  from  disease  of  the  heart, 
and  intending  to  kill  B,  gives  B  a  slight  push,  and  thereby  kills 
V>.     A  commits  murder. 

(2.)  ^  A  in  the  last  illustration  pushes  B  unlawfully,  but 
without  knowledge  of  his  state  of  health  or  intention  to  kill  him, 
or  do  him  grievous  bodily  harm.  A  commits  manslaughter. 
Tf  A  laid  his  liand  gently  on  B  to  attract  his  attention,  and  by 
doing  so  startled  and  killed  him,  A's  act  would  be  no  offence  at 
all. 

(.3.)  -A  finding  B  asleep  on  straw,  lights  the  straw,  meaning 
to  do  B  serious  injury,  but  not  to  kill  him.  B  is  burnt  to  death. 
A  commits  murder. 

(4.)  ^A  waylays  B,  intending  to  beat,  but  not  intending  to 
kill  him  or  do  him  grievous  bodily  harm.  A  beats  B  and  does 
kill  him.  This  is  manslaughter  at  least,  and  may  bo  nuirder 
if  the  heating  wore  so  violent  as  t(j  he  likely,  according  to 
coiiuiKjn  knowledge,  to  cause  death. 


'    I  know  of  no  direct  autliority  for  tlieBe  illiiHliiitioii.s,  Init    llu y   fullnw 
directly  frmii  the  priiu;i|j|<;H  .stiit<!<l   in  (Ik-  text. 
-    ErrinijIoiiH  Vunt,  XH'.iH,  '1  I^cwiii,  'J  17. 
3  FoBt.  2.j9. 


184  A    DIGEST   OF 


(5.)  ^  A  strikes  at  15  with  a  small  stick,  not  intending,'  cither 
to  kill  or  to  do  him  grievous  boilily  harm.  'Hw  hlow  kills  B. 
A  commits  manslaughter. 

(6.)  -  A,  recently  delivered  of  a  child,  lays  it  naked  by  the 
side  of  the  road  and  wholly  conceals  its  birth.  It  dies  of  cold. 
This  is  murder  or  manslaughter,  according  as  A  had  or  had  not 
reasonable  ground  for  believing  that  the  child  would  be  preserved. 

(7.)  ^  It  is  A's  duty  to  put  a  stage  at  the  mouth  of  the  shaft 
of  a  colliery.  A  omits  to  do  so.  A  truck  falls  down  the  shaft 
in  consequence  and  kills  B.  If  by  omitting  to  erect  the  stage 
A  intended  that  B's  death  should  be  caused,  A  is  guilty  of 
murder.  If  the  omission  was  caused  only  by  the  culpable 
negligence  of  A,  and  without  any  intention  to  kill  or  injure  B, 
or  a  reckless  disregai'd  to  the  chance  of  his  being  killed,  A  is 
guilty  of  manslaughter. 

(8.)  *  A,  for  the  purpose  of  rescuing  a  prisoner,  explodes 
a  barrel  of  gunpowder  in  a  crowded  street  and  kills  a  number 
of  persons,  intending  to  explode  the  barrel  of  powder  in  a 
crowded  street.  A  commits  murder,  although  he  may  have 
no  intention  at  all  about  the  people  in  the  street,  or  may  hope 
that  they  will  escape  injur3^ 

(9.)  ^  A  shoots  at  a  domestic  fowl,  intending  to  steal  it,  and 
accidentally  kills  B.     A  commits  murder. 


1  Rowley^s  Case,  Fost.  294,  remarking  on  earlier  reporters  ;  and  see 
1  Riiss.  Cr.  682,  683,  whei-e  some  other  cases  are  given. 

-  li.  v.  Walters,  1841,  C.  &  M.  164,  and  1  Russ.  Cr.  651.  This  case 
appears  to  me  to  illustrate  the  true  doctrine  on  the  subject  better  than 
the  old  and  often  quoted  case  of  the  woman  who  left  her  child  in  a  place 
where  it  was  struck  by  a  kite  and  killed.  The  point  of  that  case  I  take 
to  be  that  the  striking  by  a  kite  was  an  occurrence  sufficiently  likely  to 
impose  upon  the  mother  the  duty  of  guarding  against  it.  Kites  having  been 
almost  exterminated  in  England,  their  habits  are  forgotten.  But  to  lay  a 
child  on  the  ground  in  Calcutta  would  be  to  expose  it  to  almost  certain 
and  speedy  death  from  kites  and  other  birds  of  prey.  I  have  myself  been 
struck  by  a  kite  which  had  just  struck  at  one  of  my  children. 

3  R.  v.  Hughes,  1857,  U.  &  B.  248. 

*  /?.  v.  Desmond,  Barrett  and  Others.  In  this  case  Lord  Cliief  Justice 
Cockburn  said,  "If  a  man  did  an  act,  more  especially  if  that  were  an 
illegal  act,  although  its  immediate  purpose  might  not  be  to  take  life,  yet 
if  it  were  such  that  life  was  necessarily  endangered  by  it — if  a  man  did 
such  an  act,  not  with  the  purpose  of  taking  life,  but  with  the  knowledge 
or  belief  that  life  w-as  likely  to  be  sacrificed  by  it,"  that  was  murder : 
Times  Report,  Apr.  28,  1868.  It  is  singular  that  this  case  is  noticed  in 
Cox's  Reports  only  for  the  sake  of  a  point  about  evidence  not  the  least 
worth  reporting:  see  11  Cox,  C.  C.  146.  The  case  of  R.  v.  Allen  and 
Others,  the  Fenians  executed  after  the  Manchester  Special  Commission  in 
1867,  is  not,  so  far  as  I  know,  reported,  except  in  17  L.  T.  (N.S.)  223, 
which  reprints  the  letters  printed  in  Note  IX. 

°  Fost.  258-9,  and  see  note.      This  dictum  (which  is  supported  by  many 


THE    CRIMINAL    LAW  185 

(10.)  ^  A,  from  wanton  mischief,  throws  stones  clown  a  coal- 
pit and  knocks  awa^'  a  scaffolding.  The  absence  of  the  scaffold- 
ing causes  an  accident  by  whicli  li  is  killed.  A  commits 
manslaughtei". 

(11.)  -A,  a  thief,  pursued  by  B,  a  policeman,  who  wishes 
to  arrest  A,  trips  up  B,  who  is  accidental!}^  killed.  A  commits 
murder. 

(12.)  ^A,  having  words  with  his  wife,  B,  strikes  her  on  the 
head  with  a  pestle,  and  kills  her.  A  commits  murder,  though 
the  act  was  not  premeditated. 

(13.)*  A,  being  called  names  by  B,  a  woman,  throws  a 
broomstick  at  her,  which  happens  to  kill  her.  A  commits 
manslaughter. 

(14.)  ^  A  shoots  at  B,  intending  to  kill  him,  and  kills  C.  A 
commits  murder. 

Article  245. 

effect  axd  definition  of  provocation. 

^  Homicide,  which  would  otherwise  be  murder,  is  not 
murder,  but  manslaughter,  if  the  act  by  which  death  is 
caused  is  done  in  the  heat  of  passion,  caused  by  provocation, 
as  hereinafter  defined,  unless  the  provocation  was  sought  or 
voluntarily  provoked  by  the  offender  as  an  excuse  for  killing 
or  doing  bodily  harm. 


other  autliorities)  was  followed  by  Lord  Chief  Justice  Cocklmni  in  llarrdVs 
Cant.  He  said,  "  If  a  person  seeking  to  commit  a  felony  slicndd  in  tlie 
prosecution  of  that  purpose  cause,  althougli  it  might  be  unintentionally, 
the  death  of  another,  tliat,  l)y  the  law  of  England,  was  murder.  Tiiere 
were  persons  who  thought  and  maintained  tliat  wliore  death  thus  occurred, 
not  being  the  immediate  purpose  of  the  person  causing  tlie  death,  it  was  a 
harsh  law  wliich  made  the  act  murder.  But  the  Court  and  jury  were 
sitting  there  to  administer  law,  not  to  make  or  mould  it,  and  tiic  law  was 
wliat  he  told  them."      Tinu-.s,  April  '28,  1868. 

'    It.  V.  Ftiilon,  18.30,  1  Lewin,  179;   I  Russ.  Cr.  817. 

-  I  RuHs.  Cr.  707  59  foi'  a  large  collection  of  cases  and  authorities. 
.S(.o,  UHi,  1  Hale,  4.'»(),  400  ;  no  distinction  is  taken  in  any  of  tliese  cases 
aa  U)  the  manner  in  which  death  is  caused. 

3  1  RuHH.  Cr.  G7(i. 

*  Kouniled  on  I  Hale,  4.').')  0.  The  judges  doubted  wiu;thcr  the  case 
was  murder'  or  mansiaugliter,  and  no  judgment  was  deliver'cd,  but  the 
I)riMorier  was  piir<loned.  This  woidil  no  doulit  be  hclil  to  bi-  manslaughter 
at  the  present  ilay. 

'  FoHt.  '201  ;   1  RuHM.  Cr-.  7."»». 

«  Draft  Code,  b.  1 70. 


186  A    DIGEST   OF 


The  following  acts  may,  subject  to  the  provisions  contained 
in  Article  246,  amount  to  provocation  : — 

(a.)  ^  An  assault  and  battery  of  such  a  nature  as  to  inflict 
actual  bodily  harm,  or  great  insult,  is  a  provocation  to  the 
person  assaulted. 

(b.)  -  If  two  persons  quarrel,  and  fight  upon  equal  terms, 
and  upon  the  spot,  whether  with  deadly  weapons  or  other- 
wise, each  gives  provocation  to  the  other,  whichever  is  right 
in  the  quarrel,  and  whichever  strikes  the  first  blow. 

(c.)  ^  An  unlawful  imprisonment  is  a  provocation  to  the 
person  imprisoned,  but  not  to  the  bystanders,  though  an  un- 
lawful imprisonment  may  amount  to  such  a  breach  of  the 
peace  as  to  entitle  a  bystander  to  prevent  it  by  the  use  of 
force  sufficient  for  that  purpose.  An  arrest  by  officers  of 
justice,  whose  character  as  such  is  known,  but  who  are  acting 
under  a  warrant  so  irregular  as  to  make  the  arrest  illegal, 
is  provocation  to  the  person  illegally  arrested,  but  not  to 
bystanders. 

(d.)  ^  The  sight  of  the  act  of  adultery  committed  with  his 
wife  is  provocation  to  the  husband  of  the  adulteress  on  the 
part  both  of  the  adulterer  and  of  the  adulteress. 

(c.)  ^  The  sight  of  the  act  of  sodomy  committed  upon  a 
man's  son  is  provocation  to  the  father  on  the  part  of  the 
person  committing  the  offence. 

(/.)  '^  Neither  words,  nor  gestures,  nor  injuries  to  property, 
nor  breaches  of  contract,  amount  to  provocation  within  this 
Article.  "^  except  [perhaps]  words  expressing  an  intention  to 

I   1  Russ,  Cr.  678. 

^  Lord  Byroii's  Case,  19  St.  Tr.  1177  ;  R.  v.  Walters,  12  St.  Tr.  113  ; 
and  1  Russ.  Cr.  695-707,  where  other  cases  are  cited. 

^  For  the  first  part  of  the  clause  see  Btickner's  Case,  1  Russ.  Cr.  680  ; 
a.  V.  Withers,  Ibid.  For  the  latter  part  compare  Huggett's  Cane,  Sir  II. 
Ferrer's  Case,  Tooley's  Case,  and  Adey's  Case.,  with  Foster's  remarks  on 
Tooley's  Case  ;  1  Russ.  Cr.  753-7.  See  also  1  Hawk.  P.  C.  489  ;  li.  v. 
Osmer,  5  Ea.  308.     Also  Illustration  (5),  and  Note  IX. 

*  Cases  cited,  1  Russ.  Cr.  687.  I  am  not  aware  that  it  has  ever  been 
decided  that  adultery  by  the  husband  is  provocation  to  the  wife. 

5  li.  V.  Fisher,  1837,  8  C.  &  P.  182. 

6  1  East,  P.  C.  232  ;   1  Russ.  Cr.  677-9. 

<■  1  Russ.  Cr.  678,  note  i.  ;  Lord  Morley's  Case,  1  Hale,  P.  C.  455  ; 
a.  V.  Sherwood,  1844,  1  C.  &  K.  556,  and  see  /?.  v.  W.  Smith,  1866, 
4  F.  &  F.  1006. 


THE    CRIMIXAL    LAW  187 


inflict  actual  bodily  injury,  accompanied  by  some  act  which 
shows  that  such  injury  is  intended  ;  but  Avords  used  at  the 
time  of  an  assault — slight  in  itself — may  be  taken  into 
account  in  estimating  the  degree  of  provocation  given  by  a 
blow. 

{(J.)  ^  The  emplo5mient  of  lawful  force  against  the  person 
of  another  is  not  a  provocation  to  the  person  against  whom 
it  is  employed. 

Illustrations. 

(1.)  -  A,  a  woman,  gives  B,  a  soldier,  a  slap  in  the  face.  A 
has  not  given  B  provocation  within  this  Article. 

(2.)  *A,  a  woman,  strikes  B,  a  soldier,  with  a  heavy  clog 
violently  in  the  face  and  wounds  him.  A  has  given  B  provoca- 
tion within  this  Article. 

(3.)^  A  pulls  B  by  the  nose.  A  has  given  B  provocation 
within  the  meaning  of  this  Article. 

(4.)  ^  A  attempts  to  arrest  B  under  an  irregular  warrant  and 
in  an  irregular  way.  B  shoots  A  dead.  This  is  manslaughter 
by  reason  of  the  provocation  given  by  A  to  B. 

(5.)  ^  A  arrests  B  under  an  irregular  warrant  and  conveys 
him  to  gaol.  C,  D,  and  others  attempt  to  rescue  B.  A  resists 
and  one  of  the  party  shoots  A  dead.  This  is  nmrder  in  C,  D, 
and  all  their  party. 

(6.)  '^  A  and  B,  armed  with  swords,  quarrel,  draw  their 
swords,  and  fight.      Each  gives  the  other  provocation. 

(7.)  *^  A  and  B  quarrel,  and  agree  together  to  fight,  ami  do 
fight  a  duel  next  day.  Neither  gives  the  other  such  provocation 
as  would  reduce  the  offence  to  manslaughter  if  either  is  killed. 

(8)  ^  A    and  B  quarrel,    and    ui)on    the    spot  agree    to  fight 


>  Illustration  (12). 

'^  Stedman'8  Ccuie,  1704,  Fost.  292. 

3  Ibid. 

*    1  East,  P.  C.  2.33. 

'•  R.  V.  Stevenson,  1759,  19  St.  Tr.  H4Ci.  This  case  must  l>o  uiuIct- 
stfxjd  to  be  subject  to  the  provisions  of  tlie  next  Aiticle. 

"  This  is  the  case  of  tiic  Fenians  executed  at  Mancliester  in  I.S(i7,  for 
shfKjting  lirett,  a  police  constable  in  charge  of  a  police  van  containing  a 
Fenian  prisoner.      See  Note  IX. 

7  /{.  V.  WrUlerx,  1088,  12  St.  Tr.  li:?;  and  sec  A',  v.  Lord  lii/ron, 
19  St.  Tr.  1177. 

»  J{.  V.  C'wldy,  184.3,  1  (.'.  &  K.  21(1;  A',  v.  lianoml,  and  A',  v. 
liarlhlemy,  1802,  1).  k  I'.,  .'>1  k  (i.3,  are  recent  cases  of  duelling. 

»   It.  V.  AiuUriton,  1810,  1   Kuss.  Cr.  7<l|. 


188  A    DIGEST   OF 


with  their  fists.  A,  from  the  beginning  of  the  fight,  uses  a 
knife  and  kills  B.  A  has  not  received  such  provocation  fidiii  ]> 
as  reduces  his  oflfence  to  manslaughter. 

(9.)  ^  A  and  B  quarrel  and  agree  to  fight  with  their  fists.  In 
the  course  of  the  fight  A  snatches  up  a  knife,  which  happens  to 
be  near,  and  which  he  has  not  previously  provided,  and  kills  B. 
A  has  received  such  provocation  from  B  as  reduces  his  oSence 
to  manslaughter. 

(10.)  "^  A,  at  a  tavern,  throws  a  bottle  at  B's  head  and  draws 
his  sword.  B  throws  a  bottle  at  A's  head.  A  kills  B.  A  has 
not  received  such  provocation  from  B  as  reduces  his  offence  to 
manslaughter. 

(11.)  -^  A  and  B  quarrel  and  fight  in  a  public-house.  A  leaves 
the  public-house,  says  he  will  kill  B,  conceals  a  sword  under  his 
coat,  returns  to  the  public-house,  tempts  B  to  strike  him  with 
a  stick,  saying,  "  Stand  off,  or  I'll  stab  you,"  and  without  giving 
B  time  to  retreat,  does  stab  him  mortally.  A  does  not  receive 
from  B  such  provocation  as  reduces  his  ofience  to  manslaughter. 

(12.)  ^  A  attacks  B  in  such  a  manner  as  to  endanger  B's  life. 
B  drives  ofi"  and  pursues  A.  A  in  self-defence  kills  B.  This  is 
murder  in  A. 

Article  246. 

when  provocation  does  not  extenuate  homicide. 

^  Provocation  does  not  extenuate  the  guilt  of  homicide 
unless  the  person  provoked  is  at  the  time  when  he  does  the 
act  deprived  of  the  power  of  self-control  by  the  provocation 
which  he  has  received  ;  and  in  deciding  the  question  whether 
this  was  or  was  not  the  case,  regard  must  be  had  to  the  nature 
of  the  act  by  which  the  offender  causes  death,  to  the  time 
which  elapsed  between  the  provocation  and  the  act  which 
caused  death,  to  the  offender's  conduct  during  that  interval, 
and  to  all  other  circumstances  tending  to  show  the  state  of 
his  mind. 

1  i?.  v.  Ander.w7i,  1816,  I  Russ.  Cr.  701. 

2  B.  V.  Mavxjridrie,  1706,  Kel.  128-9  ;  Foster,  295-6. 
2  Mason's  Case,  1756,  Foster,  132. 

*  Bacon's  Maxims,  37,  38.      I  suppose  B  is  trying  to  arrest  A. 
^  See  the  cases  quoted  in  the  Illustrations,  and   li.  v.   Lynch,    1832, 
5  C.  &  P.  324.      Draft  Code,  s.  176. 


THE    cm  MI  SAL    LAW  189 


Illustrations. 

(1.)  ^  A  and  B  violently  quarrel,  and  thi'ow  bottles  at  each 
other  at  a  tavern,  A  throwing  the  first  bottle.  The  company 
interfering,  they  remain  quiet  for  an  hour,  B  wishing  to  be 
reconciled.  A  refuses,  and  says  he  will  have  B's  blood.  When 
B  and  the  rest  of  the  company  leave,  A  calls  B  back  in  terms 
of  insult,  and  fights  with  him  with  swords  ;  B  is  killed.  A 
commits  murder,  though  the  fight  is  on  equal  terms. 

(2.)  -  B  strikes  A  with  his  fist.  A,  being  the  stronger  man  of 
the  two,  throws  B  down  on  the  ground,  and  beats  out  his  brains 
with  a  poker.      A  commits  murder. 

(3.)  ^  A  and  B  quarrel  and  fight.  B,  getting  the  best  of  the 
fight,  leaves  A.  A  throws  a  coal-pick  at  B  and  injures  him, 
and  then  wounds  him  with  a  knife.  B  leaves  the  house,  saying, 
to  A,  "You  have  killed  me."  A  says  to  a  third  person,  "I  will 
have  my  revenge."  B  returns  to  the  house  soon  afterwards,  and 
A  stabs  him  again  and  kills  him.      A  has  committed  murder. 

(4.)  *  A  is  turned  out  of  a  house  and  kicked  by  B.  A  runs 
to  his  own  house,  between  200  and  300  yards  off,  returns  with 
a  knife,  and  meeting  B,  stabs  him  after  walking  quietly  with 
him  some  yards.  A  then  runs  back  and  puts  his  knife  in  its 
usual  place.  The  deliberation  shown  in  fetching  and  replacing 
the  knife  are  facts  to  be  considered  by  the  jury  in  deciding 
whether  or  not  A  committed  the  offence  whilst  deprived  of  self- 
control  b}'  passion. 

(5.)  ^  Police-officers  in  charge  of  a  police-van  have  in  custody 
I),  a  person  charged  with  felony  under  11  Vict.  c.  12.  A,  B, 
and  C,  and  others  assault  the  van  in  c(mcert,  rescue  the  prisoner, 
and  shoot  one  of  the  policemen  dead  with  a  pistol.  The  warrant 
under  which  D  was  in  custody  was  informal,  but  not  to  the 
knowledge  of  A,  B,  and  C.  A,  B,  and  C,  and  the  others  are 
guilty  of  murder,  and  it  would  have  made  no  difference  if  they 
had  known  of  the  irregularity  of  the  warrant. 


'   /{.  V.  Oiikhy,  1725,  2  St.  Tr.  7li<)  ;    I   linss.  Cr.  (lOil. 
-'  Per  Purke,  B.  in  /.'.  v.  7'fiomas,  18.S7,  7  C.  &  V.  817. 
'  //.  V.  Kirkham,  AHTi,  8  C.  &  P.  115. 
<   //.  V.  Hayuard,  1833,  0  C.  &  P.   157. 

•'  TliJH  in  llie  <;aHe  of   R.  v.  Allen  nvd  Others,  tiic  Fenians,  wIki  niunlcred 
lirclt,  tin-  ixdici-inaii.      St-e  Note  1,\. 


190  A    DIGEST   OF 


Article  247. 

provocation  to  third  person. 

^  Provocation  to  a  person  by  an  actual  assault  or  by  a 
mutual  combat,  or  by  a  false  imprisonment,  is  in  some  cases 
provocation  to  those  who  are  with  that  person  at  the  time, 
and  to  his  friends  who,  in  the  case  of  a  mutual  combat,  take 
part  in  the  fight  for  his  defence.  But  it  is  uncertain  how  far 
this  principle  extends. 

Article  248. 

suicide — abetting  suicide. 

-  A  person  who  kills  himself  in  a  manner  which  in  the  case 
of  another  person  would  amount  to  murder  is  guilty  of  murder, 
and  every  person  who  aids  and  abets  any  person  in  s(j  killing 
himself  is  an  accessory  before  the  fact,  or  a  princi})al  in  the 
second  degree  in  such  murder. 

Article  249. 
manslaughter  on  oneself. 
^  A  person  cannot  commit  manslaughter  on  himself. 

Article  250. 

accessories  before  the  fact  in  manslaughter. 

It  seems  that  there  may  be  accessories  before  the  fact  in 
manslaughter  if  the  act  or  omission  by  which  death  is  caused 

'  I  Russ.  Cr.  704-.5.  The  passage  referred  to  is  taken  from  Hawkins. 
See  Cary\s  Case,  (p.  705),  which  is  this  :  "  A  and  B  were  fighting  in  a  field 
in  a  quarrel.  C,  A's  kinsman,  casually  riding  by  and  seeing  them  in  fight 
and  his  kinsman  one  of  them,  rode  in,  drew  his  sword,  thrust  B  through 
and  killed  him.  Coke,  C.J. ,  and  the  rest  of  the  Court  agreed  that  this  is 
clearly  but  manslaughter  in  him  (i.e.  C)  and  nuirder  in  the  other,  for  the 
one  may  have  malice  and  the  other  not."  I  should  have  said  C's  off"ence 
was  infinitely  worse  than  A's,  and  I  do  not  think  this  case  would  be 
followed  in  the  present  daj'. 

-  1  Hale,  P.  C.  411-419.  Sec  R.  v.  Fretwell,  1862,  L.  &  C.  161  ; 
R.  V.  Rmsell,  1832,  I  Moo.  C.  C.  356.      Draft  Code,  s.  183. 

■'  Per  Pollock,  C.B.,  and  Williams,  J.,  in  R.  v.  Burgess,  1862,  L.  &  C. 
258,  referring  to  Jervis  on  Coroners,  App.  p.  322,  note  4. 


THE   CRIMINAL    LAW  191 

is  not  such  an  act  or  omission  as,  but  for  provocation  received 
by  the  offender,  would  have  been  murder. 

Ilhistration. 

^  A  advises  B  to  give  C  a  strong  dose  of  medicine  to  make 
him  feel  sick  and  uncomfortable.  B  does  so  and  C  dies.  B  is 
guilty  of  manslaughter,  and  A  is  accessory  before  the  fact  to 
manslaughter. 

Article  251. 
presumption  that  killing  is  murder. 

-  Every  pereon  who  kills  another  is  presumed  to  have  wil- 
fully murdered  him  unless  the  circumstances  are  such  as  to 
raise  a  contrary  presumption. 

The  burden  of  proving  circumstances  of  excuse,  justifica- 
tion, or  extenuation  is  upon  the  person  who  is  shown  to  have 
killed  another. 

Article  252. 

punishment  of  murder. 

^  Every  one  who  commits  murder  is  guilty  of  felony,  and 
must  on  conviction  thereof  be  sentenced  to  death,  "*  and  the 

»  Pbr  Biamwell,  B.,  in  R.  v.  Gaylor,  57,  D.  &  B.  at  p.  291.  Tlie  text 
ia  stated  douljtfullj'  because  the  question  has  never  l)een  positively  decided  : 
Coke  (3rd  List.  55),  Hale  (2  P.  C.  437)  and  East  (1  P.  C.  218)  say  that 
there  can  he  no  accessories  before  the  fact  in  manslaughter  ;  but  tlic 
doctrine  on  the  suljject  is  very  differently  understood  in  tliese  days.  See 
li.  V.  Taylor,  1875,  2C.  C.  R.  147.  Tliat  uidawful  killing,  witli  a  deli- 
berate intent  to  do  sliglit  bodily  iiarin,  wiiicli  liapj)ens  to  cause  <leath,  is 
manslaughter,  is  a  comparativcl}-  modern  doctrine.  By  Coke's  definition 
it  would  be  muider.  Whatevei-  it  is  called  tiieie  ma}'  obviously'  be  an 
accessory  bcf<»re  the  fact  to  such  an  act.  If  a  principal  is  convi(;tcd  of 
manslaugiiter  upon  an  indictment  for  nuirder  a  per-son  chargc<l  as  accessory 
after  the  fact  can  be  convicted  :  li.  v.  (Jn-enwri',  post. 

^   1    Hush.  (Jr-.  042  :    li.  v.  (Jrejiiacre,  1837,  8  C.  &  P.  35. 

•■'  24  k  25  V^ict.  c.   100,  s.  3.      Draft  Code,  s.   178. 

*  Ibifl.  Probal)ly  the  latter  part  of  the  section  would  l>c  li<M  if  (he 
case  arose  to  be  merely  directory,  H<i  that  its  omission  would  not  ri-ndcrthe 
sentence  voirl.  See  II.  v.  Wyall,  1812,  H.  &  li.  230,  decided  <ui  anaiogouH 
provision  in  25  (Jeo.  2,  c.  37,  ss.  I,  7.  1  lie  execution  nnist  in  this  case  be 
private.     Sec  31  Vict.  c.  24. 


192  A    DIGEST   OF 

judgnicnt  must  direct  that  his  body  shall  ha  buried  witliin 
the  precincts  of  the  prison  in  which  he  shall  have  been  last 
confined  after  conviction. 

lAuTicLE  253. 

PUNISHMENT   OF    MANSLAUGH'rER. 

-  Every  one  who  commits  manslaughter  is  guilty  of  felony 
and  liable  to  penal  servitude  for  life,  or  to  a  fine. 

Article  254. 
^  attempts  to  commit  murder. 

*  Every  one  is  guilty  of  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life,  who  does  any  of  the 
following  things  with  intent  to  commit  murder ;  that  is  to 
say— 

(a.)  ^  administers  any  poison  or  other  destructive  thing  to 
any  person,  or  causes  any  such  poisonous  thing  to  be  so  ad- 
ministered or  taken,  or  attempts  to  administer  it,  or  attempts 
to  cause  it  to  be  so  administered  or  taken ; 

(b.)  ^  by  any  means  whatever  wounds  or  causes  any  grievous 
bodily  harm  to  any  person ; 

(c.)  ^  shoots  at  any  person,  or,  by  drawing  a  trigger  or  in  any 

1  3  ma.  Cr.  Law,  78-9.     Draft  Code,  s.  182. 
-  24  &  25  Vict.  c.  100,  s.  5. 

3  For  the  history  of  the  provisions  see  3  Hist.  Cr.  Law,  ch.  xxvii. 
p.  108-120.     Draft  Code,  s.  179. 

*  24  &  25  Vict.  c.  100,  ss.  11-15. 
»  Ibid.  ss.  1 1  &  14. 

6  24  &  25  Vict.  c.  100,  s.  11.  In  It  v.  Grmj,  1857,  D.  &  13.  303,  it  was 
held  tliat  to  cause  congestion  of  the  lungs  by  exposing  a  child  in  a  field 
was  not  causing  "  a  bodily  injury  dangerous  to  life"  within  7  Will.  4  &  1 
Vict.  c.  15,  s.  2,  but  such  a  case  would  now  fall  under  clause  (h),  s.  15. 
See  remark  of  Cockburn,  C.J. ,  p.  306. 

^  Ibid.  s.  14.  The  words  "  any  other  manner  "  mean  any  other  manner 
like  drawing  a  trigger,  e.g.  applying  a  lighted  match  to  a  matchlock,  or 
striking  a  percussion  cap  witli  a  hammer,  and  include  attempting  to 
draw  a  trigger.  R.  v.  Dnckinorth,  1892,  2  Q.  B.  83,  overruling  R.  v. 
St.  Georije,  1840,  9  C.  &  P.  483.  See  R.  v.  Len:u,  1840,  9  C.  &  P. 
523,  as  to  what  constitutes  an  attempt  to  discharge  a  fire-arm.  R.  v. 
Duckworth  was  decided  not  upon  tliis  section,  but  upon  s.  18,  which  con- 
templates the  same  acts  with  different  intents.      Art.  257  (a). 


THE   CRIMINAL    LAW  193 


other  manner,  attempts  to  discharge  at  any  person  ^  any  kind 
of  loaded  arms ; 

(d.)  -attempts  to  drown,  sufifocate,  or  strangle  any  person; 

(f.)  ^  destroys  or  damages  any  building  by  the  explosion  of 
gunpowder  or  other  explosive  substance  ; 

(/.)  ■*  sets  fire  to  any  ship  or  vessel  or  any  pait  thereof,  or 
any  part  of  the  tackle,  apparel,  or  furniture  thereof,  or  to  any 
goods  or  chattels  being  therein  ; 

(^.)  ^  casts  away  or  destroys  any  vessels ; 

(A.)  ^  or  who  attempts  to  commit  murder  by  any  means 
other  than  those  specified  in  clauses  (a.)-(g.),  both  inclusive  ; 

(i.)  ^  or  who  is  accessory  after  th«.'  fact  to  any  murder. 


Article  255. 
threats  and  conspiracies  to  murder. 

Every  one  is  liable  to  ten  years  penal  servitude  who 
commits  either  of  the  following  ofi'ences,  the  first  of  which 
is  a  felony  and  the  others  misdemeanours  ;  that  is  to  say — 

(a.)  *  whoever  maliciously  sends,  delivers,  or  utters  or 
directly  or  indirectly  causes  to  be  received,  knowing  the 
contents  thereof,  any  letter  or  writing  threatening  to  kill  or 
murder  any  person ; 

(b.)  ^  all  persons  who  conspire,  confederate,  and  agree  to 
murder  any  person,  whether  he  be  a  subject  of  His  Majesty 
or  not,  and  whether  he  be  within  the  King's  dominions  or 
not ; 

'  "  Loa<led  amis  "  means  arms  loaded  in  the  bairel  witli  gunpowder  or 
anv  other  explosive  sulistance,  and  l)all,  shot,  slug,  or  otlier  destructive 
material,  although  the  attempt  to  discharge  the  same  may  fail  from  want 
of  proper  priming  or  any  other  cause,  24  &  25  Vict.  c.  1  (iO,  s.   1 !). 

2  24  k  25  Vict.  c.  100,  s.  14. 

3  Ibid.  8.  12. 
«  Ibid.  H.  13. 
5  Ibid. 

"  Ibi<l.  M.  15.      Ah  to  the  cases  to  which  this  section  applies  see  A',  v. 
Ilrnuyii,  1SS3,  10  Q.  B.  D.  381.      It  does  not  apply  to  attempts  to  commit 
uci.le  ;  li.  v.  BurtjenM,  1862,  L.  &  C.  258. 
■  Ibid.  H.  67. 
»  Ibid.  H.    Hi,  W. 
9  Ibid.  «.  t. 


194  A    DIGEST   OF 


(c.)  ^  every  one  who  solicits,  encourages,  persuades,  endea- 
vours to  persuade,  or  proposes  to  any  person  to  murder  any 
other  person,  whether  he  be  a  subject  of  His  Majesty  or  not, 
and  whether  he  be  within  the  King's  dominions  or  not. 

[-  And  whether  the  solicitation,  encouragement,  persuasion, 
or  endeavour  to  persuade  is  addressed  to  any  specific  person 
or  not,  or  relates  to  the  murder  of  any  specific  person  or 
not.] 

Article  256. 
2  concealing  the  birth  of  children. 

•*  Every  person  is  guilty  of  a  misdemeanour,  and  is  liable 
upon  conviction  thereof  to  two  years  imprisonment  with  hard 
labour,  who,  if  any  woman  is  delivered  of  a  child,  endeavours 
to  conceal  the  birth  thereof  by  any  secret  disposition  of  the 
dead  body  of  the  said  child,  whether  such  child  died  before, 
at,  or  after  its  birth. 

^  The  expression  "  delivered  of  a  child  "  does  not  include 
delivery  of  a  foetus  which  has  not  reached  the  period  at  which 
it  might  have  been  born  alive. 

^  The  words  "  secret  disposition  of  the  body  "  include  cases 
in  which  the  body  is  placed  in  a  situation  where  it  is  not 
likely  to  be  found  except  by  accident,  or  upon  search,  although 
the  body  is  in  no  way  concealed  from  any  one  who  happens 
to  go  to  that  place. 

1  24  &  25  Vict.  c.  100,  s.  4. 

-  The  words  in  brackets  are  intended  to  give  the  effect  of  lu  v.  Mofit, 
1881,  7  Q.  B.  D.  244. 
3  3  Hist.  Cr.  Law,  118.     Cf.  Draft  Code,  ss.  185-7. 
■<  24  &  25  Vict,  c,  100,  s.  60  (verbally  altered). 

5  R.  V.  Berriman,  1854,  6  Cox  C.  C.  388. 

6  R.  V.  Brown,  1870,  1  C.  C.  R.  244.  The  Act  seems  to  be  defective 
in  punishing  only  the  seci'et  disposition  of  the  body,  and  not  the  dis- 
posing of  the  body  in  such  a  way  as  to  conceal  the  fact  that  it  was  born  of 
its  mother.  If  a  woman  were  to  leave  a  child's  body  by  night  in  the 
middle  of  a  street,  or  to  drop  it  by  day  in  a  crowd  of  people,  there  would 
be  an  effectual  concealment  of  the  birth,  but  would  there  be  a  "secret 
disposition"  of  the  body?  Under  the  old  Act,  9  Geo.  4,  c.  31,  s.  14,  it 
was  held  that  a  temporary  concealment  of  the  body  with  intent  to  remove 
it  afterwards  to  some  other  place  was  within  the  words  "  secret  burying 
or  otherwise  disposing"  :  R.  v.  Perry,  1855,  D.  &  P.  471.  This  would 
seem  to  be  so  a^  fortiori  under  the  present  law. 


THE    CRIMINAL    LAW  195 


CHAPTER  XXV 

THE  MALICIOUS  INFLICTIOX  OF  BODILY  INJURIES 
AMOUNTING  TO  FELONY 

Article  257. 

woundings  and  acts  endangering  life  punishable  with 
penal  servitude  for  life. 

Every  one  is  guilty  of  felony,  and  liable  to  penal  servitude 
for  life,  who  does  any  of  the  following  things  unlawfully  and 
maliciously ;  that  is  to  say — 

(a.)  -  who,  with  intent  to  maim,  disfigure,  or  disable  any 
person,  or  to  do  some  other  grievous  bodily  harm  to  any 
person,  or  to  resist  or  prevent  the  lawful  apprehension  or 
detainer  of  any  person, 

by  any  means  whatsoever  ^  wounds  or  causes  any  grievous 
bodily  harm  to  any  person,  or  shoots  at  any  person,  or  by 
drawing  a  trigger,  or  *  in  any  other  manner  attempts  to  dis- 
charge at  any  person  any  kind  of  ^  loaded  arms  ;  or 

{h.)  ^  shoots  at  any  vessel  or  boat  belonging  to  His 
Majesty's  navy,  or  in  the  service  of  the  revenue,  within 
one  hundred  leagues  of  any  part  of  the  coast  of  the  United 
Kingdom,  or 

{c.)  "  .shoots  at,  maims,  or  wounds  any  officer  of  the  arm}-, 
navy,  marines,  or  coast-guard,  being  duly  employed  in  the 

'  .3  HiHt.  Cr.  Law,  ch.  xxvii.  pp.  108-120.  Draft  Code,  Part  .wiii.  ss. 
188-202. 

'-'  24  &  2.5  Vict.  c.  100,  h.  18. 

■''  To  wound  means  to  divide  the  surface  of  the  body  whclhor  it  he  an 
internal  or  external  Hurface,  (".{j.  the  inside  of  the  mouth.  R.  v.  Leonard 
Smith,  1837,  8  C.  &  P.  17.3,  and  sec  other  cases  in  1    Russ.  Cr.  921. 

*  Attempting  to  clraw  a  trigger  is  "another  manner"  within  the  mean- 
ing of  this  section.  li.  v.  iJurkworlh,  1892,  2  Q.  B.  83.  Sec  also  A',  v. 
Broini,  10  Q.  H.   D.  381. 

'■  Sec  p.   193,  note  I,  for  <lcfinition  of  loaded  arms. 

8  39  &  40  Vict.  <:.  36,  H.  193.  The  word  "unlawfully  "  is  not  in  tliis 
flection.  An  offender  against  the  section  may  l)c  imj)risoned  for  any  term 
not  exceeding  three  years. 

o  2 


196  A   DIGEST   OF 


prevention  of  smuggling,  and  on  full  pay,  or  any  officer  of 
customs  or  excise,  or  any  person  acting  in  his  aid  or  assist- 
ance, or  duly  employed  for  the  prevention  of  smuggling,  in 
the  execution  of  his  office  or  dut}' ;  or 

(d.)  ^  aids,  abets,  or  assists  in  any  offence  mentioned  in  (b.) 
or  (c.) ;  or 

(c.)  ^  who  with  intent  to  enable  himself  or  any  other  person 
to  commit,  or  with  intent  to  assist  any  other  person  in  com- 
mitting, any  indictable  offence, 

^  attempts  by  any  means  whatsoever  to  choke,  suffocate, 
or  strangle  any  other  person,  or  attempts  by  any  means  cal- 
culated to  choke,  suffocate,  or  strangle,  to  render  any  other 
person  insensible,  unconscious,  or  incapable  of  resistance  ; 

■^  or  ^  administers  to  any  person  any  chloroform,  laudanum, 
or  other  stupefying  or  overpowering  ^  matter  or  attempts  to 
do  so; 

(/.)  ^  or  who  burns,  maims,  disfigures,  disables,  or  does  any 
grievous  bodily  harm  to  any  person  by  the  explosion  of  gun- 
powder or  other  explosive  substance  ; 

(g.)  ^  or  who,  with  intent  to  burn,  maim,  disfigure,  or  dis- 
able any  person,  or  to  do  some  grievous  bodily  harm  to  any 
person,  causes  any  gunpowder  or  other  explosive  substance  to 
explode,  or 

sends  or  delivers,  or  causes  to  be  taken  or  received  by  any 
person,  any  explosive  substance  or  other  dangerous  or  noxious 
thing,  or  puts  or  lays  at  any  place  or  casts  or  throws  at  or 
upon  or  otherwise  applies  to  any  person  any  corrosive  fluid  or 
destructive  or  explosive  substance ; 

1  39  &  40  Vict.  c.  36,  s.  193. 

2  24  &  25  Vict.  c.  100,  ss.  21  &  22. 

3  Ibid.  s.  21.  An  offender  against  this  section  is  liable,  if  a  male  of 
whatever  age,  to  be  thrice  privately  whipped  in  addition  to  the  other 
punishments  specified  above  :  26  &  27  Vict.  c.  44,  s.  1,  and  see  Article  12 
{d.),  as  to  the  manner  of  inflicting  the  punishment.  The  words  "unlaw- 
fully and  maliciously  "  do  not  apply  to  this  section. 

*  Ibid.  s.  22.      The  word  ' '  maliciously  "  does  not  apply  to  this  section. 

^  ' '  Applies  or  administers  to,  or  causes  to  be  taken  by,  or  attempts 
to  apply  or  administer  to  or  attempts  to  cause  to  be  administered  to  or 
taken  by." 

^  "  Drug,  matter,  or  thing." 

'  24  &  25  Vict.  c.  100,  s.  28,  W. 

8  Ibid.  s.  29,  W. 


THE   CRIMINAL   LAW  197 

(Ji.)  ^  or  who,  with  intent  to  endanger  the  safety  of  any 
person  travelling  or  being  upon  any  railway, 

puts  or  throws  -  anything  upon  or  across  any  railway,  or 

takes  up,  removes,  or  displaces  any  rail,  sleeper,  or  other 
matter  or  thing  belonging  to  any  railway,  or 

turns,  moves,  or  diverts  any  points  or  other  machinery 
belonging  to  any  railway,  or 

makes  or  shows,  hides  or  removes,  any  signal  or  light  upon 
or  near  any  railway,  or 

does  or  causes  to  be  done  any  other  matter  or  thing ; 

( i.)  ^  or  who  *  throws  ^  anything  at  any  ^  carriage  used  upon 
any  railway  with  intent  to  injure  or  endanger  the  safety  of 
any  person  therein  or  thereon,  or  in  or  upon  any  other 
^  carriage  forming  part  of  the  same  train  ; 

{j.)  '  or  who  prevents  or  impedes  any  person  being  on  board 
of  or  having  quitted  any  ship  or  vessel  in  distress,  wrecked, 
stranded,  or  cast  on  shore,  in  his  endeavour  to  save  his  life,  or 
prevents  and  impedes  any  person  in  his  endeavour  to  save  the 
life  of  any  person  so  situated  ; 

(^^)  ^  or  who,  being  a  woman  with  child,  unlawfully  ad- 
ministers to  herself  any  poison  or  other  noxious  thing  or 
unlawfully  uses  any  instrument  or  other  means  whatsoever 
with  intent  to  procure  her  own  miscarriage ; 

il.)  ^  or  who,  with  intent  to  procure  the  miscarriage  of  any 
woman,  whether  she  be  or  be  not  with  child,  unlawfully  ad- 
ministers to  or  causes  to  be  taken  by  her  any  poison  or  other 

'  24  &  25  Vict.  c.  100,  s.  32,  W. 

-  "  Any  wood,  stone,  or  other  matter  or  thing." 

3  24  &  24  Vict.  c.  100,  s.  33. 

*  Tlirows,  or  cau.se.s  to  fall,  or  strikes  at,  against,  into,  or  upon. 
•'•  Any  wfKj<l,  .stone,  or  other  matter  oi'  thing. 

"  Engine,  tender,  carriage,  or  truck. 
"  24  &  25  Vict.  c.  100,  s.  17. 

*  Ihid.  8.  58.  A  person  who  gives  another  a  drug  to  be  taken  in  tlic 
absence  of  the  giver  "causes  it  to  be  taken,"  and,  it  would  seem,  "ad- 
ministers" it,  though  absent  when  it  is  taken:  li.  v.  Wilnon,  1856,  1).  & 
15.  J27,  and  cases  referred  to  in  the  argument  ;  also  R.  v.  Farrow,  1857, 
M.  tc  v..  Hi4. 

'■'  Ibid.  H.  58.  A  conspiracy  to  procure  al>ortion  may  be  an  otl'ence  l)oth 
by  the  woman  on  whom  an  abortion  is  to  be  ])ro(  urcd  and  by  men  with 
whom  she  conspires  to  jirocure  it,  although  tlie  woman  is  not  |>regnant  : 
/.'.  V.  Whiirhnrrh,  I8!»0,  24  Q.  H.  I).  420  ;  10  Cox,  C.  C.  743  ;  <f.  li.  v. 
I(*iiij,  ami  A'    V    iWowii,  aiitt,  p.  41,  n.  4. 


198  A    DIGEST   OF 


^  noxious  thing,  or  unlawfully  uses  any  instrument  or  other 
means  whatsoever  with  the  like  intent. 


Article   258. 

blowing  up  buildings  and  ships  with  intent  to  injure — 
fourteen  years  penal  servitude. 

2  Every  one  is  guilty  of  felony,  and  is  liable  on  conviction 
to  fourteen  years  penal  servitude,  who,  with  intent  to  do  any 
bodily  injury  to  any  person,  unlawfully  and  maliciously 
places  or  throws  any  gunpowder  or  other  explosive  substance 
in,  into,  upon,  against,  or  near  any  building,  ship  or  vessel, 
whether  or  not  any  explosion  takes  place,  and  whether  or 
not  any  bodily  injury  is  effected. 


Article  259. 

administering  poison  so  as  to  endanger  life  or  cause 
harm — ten  years  penal  servitude. 

3  Every  one  is  guilty  of  felony,  and  is  liable  upon  convic- 
tion to  ten  years  penal  servitude,  who  unlawfully  and 
maliciously  administers  to,  or  causes  to  be  administered  to, 
or  taken  by  any  other  person  any  poison  or  other  destructive 
or  noxious  thing,  so  as  thereby  to  endanger  the  life  of  such 
person,  or  so  as  thereby  to  inflict  upon  such  person  any 
grievous  bodily  harm. 

'  A  thing  not  otherwise  noxious  may  be  noxious  if  administered  in 
excess,  but  some  things  are  so  commonly  noxious  (arsenic,  e.g.)  that 
perhaps  the  administration  even  of  a  quantity  too  small  to  do  harm  might 
be  held  to  constitute  the  offence  punished  by  this  section  if  there  were  an 
intent  to  procure  miscarriage.  See  R.  v.  Cramp,  1880,  .5  Q.  B.  D.  .307  ; 
also  JR.  V.  Imac.%  1862,  L.  &  C.  220,  and  R.  v.  Hennah,  1877,  13  Cox, 
C.  C.  547. 

2  24  &  25  Vict.  c.  100,  s.  30,  W.  ;  and  see  46  Vict.  c.  3,  Art.  418,  joos<. 

3  Ibid.  s.  23. 


THE   CRIMINAL    LAW  199 


CHAPTER   XXVI 

1  THE  INFLICTION  OF  BODIL  Y  INJURIES  NOT  AMOUNTING 
TO  FELONY 

Article  260. 

malicious  wounding  and  similar  acts  punishable  with 
five  years  penal  servitude. 

Every  one  commits  a  misdemeanour,  and  is  liable  to  five 
years  penal  servitude,  who 

(a.)  -  unlawfully  and  maliciousl}'  wounds  or  inflicts  any 
grievous  bodily  harm  upon  any  other  person  either  with  or 
without  any  weapon  or  instrument ; 

(6.)  ^or  who  unlawfully  and  maliciously  administers,  or 
causes  to  be  administered  to  or  taken  by  any  other  person, 
any  poison  or  other  destructive  or  noxious  thing  with  intent 
to  injure,  aggrieve,  or  annoy  such  person  ; 

(c.)  *  or  who  unlawfully  supplies  or  procures  any  poison  or 
other  no.xious  thing,  or  any  instrument  or  thing  whatsoever, 
knowing  that  the  same  is  intended  to  be  unlawfully  used  or 
employed  with  intent  to  procure  the  miscarriage  of  any 
woman,  whether  she  be  or  be  not  with  child  (^even  if  the 
intention  so  to  use  the  same  exists  only  in  his  own  mind, 

'  Draft  Code,  Part  xviii.  ss.  188-202. 

-  24  &  25  Vict.  c.  100,  s.  20.  "  Maliciously  "  in  this  section  covers  all 
cases  in  which  a  person  wilfully  and  without  lawful  excuse  does  tliat 
wliich  he  knows  to  be  likely  to  injure  anotiier  :  li.  v.  Martin,  1881, 
S  Q.  B.  I).  54.  It  ajiplies  to  cases  in  whicii  a  man  strikes  at  one"  person 
maliciouslv  and  wounds  another  accidentally  :  li.  v.  Lntim<r,  I88(i, 
17  (I  H.  1).  .359  ;   11.  v.  Hunl,  1825,  1  Moo.  C.  C.  93. 

'  Ibid.  H.  24.  An  intent  to  excite  sexual  passion  is  within  this  jjru- 
vision  :  li.  v.  Wilkiwi,  I8<il,  L.  &  C.  89.  This  case  was  not  argued,  nor 
were  reasfjns  given  for  the  judgment.  The  facts  were  that  the  tiling 
a'lministered  was  likely  to  cause  and  diil  cause  injury  and   annoyance. 

'  Ibid.  s.  59.  To  Kujiply  a  tiling  which  is  not  noxious  with  the  intent 
mentioned  is  not  witliin  the  section  :   li.  v.  Imuucm,  |S(j'J,  L.  &  C.  220. 

•'•  li.  V.  Ilillman,  iHtili,  L.  &  C.  34.'}. 


200  A    DIGEST   OF 


and  is  not  entertained  by  the  woman  whose  miscarriage  he 
intends  to  procure). 

(d.)  ^  or  who,  being  legally  liable  either  as  a  master  or  a 
mistress,  to  provide  for  any  apprentice  or  servant  necessary 
food,  clothing,  or  lodging,  wilfully  and  without  lawful  excuse 
refuses  or  neglects  to  provide  the  same,  or  unlawfull}'  and 
maliciously  does,  or  causes  to  be  done,  any  bodily  harm  to 
such  apprentice  or  servant,  so  that  the  life  of  such  appren- 
tice or  servant  is  endangered,  or  that  his  health  has  been  or 
is  likely  to  be  permanently  injured ; 

(e.)-or  who  ^sets  any  spring-gun,  man-trap,  or  other 
engine  calculated  to  destroy  human  life  or  inflict  grievous 
bodily  harm,  with  the  intent  that  the  same  ^  or  whereby  the 
same  may  destroy  or  inflict  grievous  bodily  harm  upon  a 
trespasser  or  other  person  coming  in  contact  therewith. 

Every  person  is  deemed  to  have  set  any  of  the  above- 
mentioned  engines  who,  when  it  has  been  set  by  any  other 
person  in  any  place  then  in  or  afterwards  coming  into  the 
possession  or  occupation  of  the  person  first  mentioned, 
permits  it  to  continue  so  set  with  the  intent  aforesaid. 

Provided  that  this  clause  does  not  extend  to  any  gin  or  trap 
usually  set  with  the  intent  of  destroying  vermin,  or  to  any 
spring-gun,  man-trap,  or  engine,  set  from  sunset  or  sunrise 
in  a  dwelling-house  for  the  protection  thereof 

Article  261. 

negligent  acts  punishable  with  two  years  imprisonment. 

Every  one  is  guilty  of  a  misdemeanour,  and  liable  to  two 
years  imprisonment  with  hard  labour, 

(a.)  ^  who  by  any  unlawful  act,  wilful  omission,  or  neglect, 

>  24  &  25  Vict.  c.  100,  s.  26. 

2  Ibid.  s.  31. 

^  "  Sets  or  places  or  causes  to  be  set  or  placed." 

*  The  words  "or  whereby  the  same"  in  tlie  corresponding  section  of 
the  preceding  statute  7  &  8  Geo.  4,  c.  18  were  held,  upon  demurrer  m  an 
action  for  the  value  of  a  dog,  not  to  create  an  ofiFence  where  there  was  no 
intent.  Jordin  v.  Cmmp,  1841,  8  M.  &  W.  782.  It  seems  unlikely  that 
this  iniling  would  now  be  followed  in  a  criminal  prosecution. 

s  24  &  25  Vict.  c.  100,  s.  .S4. 


THE    CRIMINAL    LAW  201 


endangers,  or  causes  to  be  endangered,  the  safety  of  any 
person  conveyed  or  being  in  or  upon  a  railway,  or  aids  or 
assists  therein, 

(i.)  ^  or  who,  having  the  charge  of  any  carriage  or  vehicle, 
b}'  wanton  or  furious  driving  or  racing,  or  other  wilful  mis- 
conduct, or  by  wilful  neglect,  does  or  causes  to  be  done  any 
bodily  harm  to  any  person  whatsoever. 

(c.)  -  or  "sstho,  being  an  engine-driver,  guard,  porter,  or  other 
servant  in  the  employ  of  a  railway  company,  is  found  drunk 
or  committing  an  offence  against  the  bye-laws  of  the  company, 
or  wilfully,  maliciously,  or  negligently  does  or  omits  to  do  any 
act  whereby  the  life  or  limb  of  any  person  upon  the  railway 
shall  or  might  be  injured  or  the  passage  of  engines,  carriages, 
or  trains  impeded,  or  counsels,  aids,  or  assists  in  such  an 
offence. 

1  24  &  25  Vict.  o.  100,  s.  35. 

-  3  &  4  Vict.  c.  97,  s.  1 3.  This  offence  is  also  punishable  summarily, 
when  its  scope  is  extended  by  5  &  6  Vict.  c.  55,  s.  17. 


202  A    DIGEST   OF 


CHAPTER   XXVII 

^ASSAULTS  AGGRAVATED  AND  COMMON  PUNISHABLE 
ON  INDICTMENT 

Article  262. 
assault  and  battery  and  assault  defined. 

An  assault  is 

(a.)  -an  attempt  unlawfully  to  apply  any  the  least  actual 
^  force  to  the  person  of  another  directly  or  indirectly, 

(&.)  the  act  of  using  a  gesture  towards  another  giving 
him  reasonable  grounds  to  believe  that  the  person  using  that 
gesture  meant  to  apply  such  actual  force  to  his  person  as 
aforesaid, 

(c.)  the  act  of  depriving  another  of  his  liberty, 

in  either  case  without  the  consent  of  the  person  assaulted, 
or  with  such  consent  if  it  is  obtained  by  fraud. 

*It  is  no  defence  to  a  charge  or  an  indictment  for  an 
indecent  assault  on  a  young  person  under  the  age  of  thirteen 
to  prove  that  he  or  she  consented  to  the  act  of  indecency. 

A  battery  is  an  assault  whereby  any  the  least  actual  force 
is  actually  applied  to  the  person  of  another,  or  to  the  dress 
worn  by  him,  directly  or  indirectly. 

»  Draft  Code,  Pait  xix.  ss.  203-6. 

^  See  Article  43  for  a  definition  of  an  attempt. 

3  1  Rus.s.  Cr.  956  ;  1  Hawk.  P.  C.  100.  A  most  elaborate  definition  of 
"force"  is  given  in  the  Indian  Penal  Code,  s.  350,  as  the  foundation  for 
a  definition  of  assault,  s.  351 .  The  definition  is  almost  more  mathematical 
than  legal.  It  begins  thus  :  "A  person  is  said  to  use  force  to  another  if 
he  causes  motion,  change  of  motion,  or  cessation  of  motion  to  that  other," 
&c. ,  &c.  It  is  impossible  not  to  ask  why,  if  force  is  to  be  defined,  motion 
should  be  left  undefined.  It  is,  I  think,  liardly  too  great  a  demand  on 
the  candour  of  a  reader  to  suppose  that  he  will  see  that  a  man  wlio  with- 
draws a  chair  on  which  a  person  is  about  to  sit  down,  causing  him  thereby 
to  fall  to  the  ground  ;  or  who  whips  a  horse  on  which  he  is  sitting,  and 
so  makes  him  ran  away  with  his  rider  ;  or  who  breaks  a  hole  in  ice  in 
front  of  a  skater,  and  so  causes  him  to  fall  into  the  water — "applies 
actual  force  to  his  person  indirectly." 

*  43  &  44  Vict.  c.  45,  s.  2. 


THE    CRIMINAL    LAW  203 

Provided  that  such  acts  as  are  reasonably  necessary  for 
the  common  intercourse  of  life,  are  not  assaults  or  batteries 
if  they  are  done  for  the  purpose  of  such  intercourse  only 
and  with  no  greater  force  than  the  occasion  requires. 

No  mere  words  can  in  any  case  amount  to  an  assault. 


Ilhtstrations. 

The  following  are  cases  of  assault  and  battery  : — 

(I  )  ^  A  cuts  B's  dress  whilst  B  is  wearing  it,  but  without 
touching  or  intending  to  touch  any  part  of  B's  person. 

(2.)  -  A  sets  a  dog  at  B,  which  bites  B. 

(3.)  ^  A  man  professing  to  act  as  a  medical  adviser  fraudulently 
induces  a  girl  to  allow  him  to  undress  her,  by  falsely  alleging 
that  it  is  necessary  for  medical  reasons  to  do  so. 

(4.)  *  A  touches  B,  a  boy  of  eight,  in  a  grossly  indecent 
manner,  B  acquiescing  in  ignorance  of  the  nature  of  the  act. 

(5.)  "  A  induces  B  to  permit  him  to  have  connection  with  her 
by  pretending  to  be  her  husband.  (This  is  now  also  rape,  by 
statute  48  &  49  Vict.  c.  69,  s.  4.) 

The  following  are  cases  of  assault  without  battery  : — 

(6.)  •"  A  strikes  at  B  with  a  stick  without  hitting  hiui. 

(7.)  '^  A  aims  a  pistol  at  B  which  A  knows  is  not  loaded,  but 
which  B  believes  to  be  loaded. 

In  the  following  cases  no  assault  or  battery  is  committed  : — 

(8.)  A  lays  his  hand  on  B  to  attract  his  attention. 

(9.)  A,  falling  down,  catches  hold  of  B  to  save  himself. 

(10.)  A  crowd  of  people,  going  into  a  theatre,  push  and  are 
pushed  against  each  other. 


•  R.  V.  Day,  184.5,  1  Cox,  C.  C.  207. 

-   1  Rush.  Cr.  958,  gives  several  cases  of  this  sort. 

3  J{.  V.  I{owi.-<kl,  1  Hubs.  Cr.  959  ;  and  sec  li.  v.  Casr,  1850,  1  Don. 
C.  C.  580. 

*  /i.  V.  Lock,  1872,  2  C.  C.  H.  Id,  and  see  A',  v.  liarratt,  1X7:5. 
2  C.   C.   R.   81. 

6  R.  V.   WUlifimx,  1838,  8  C.  &  V.  -281;.     Tiic  prisoner  was  seiitiiic.'.l  to 
three  years  imprisonment  with  lianl  hibour,  no  doubt  on  tiu;  ground  tiia 
the  assault  was  indecent.     The  maximum  punishnient  would  now  l>e  two 
years  hard  lalx>ur      See  Article  267  ('/. ). 

0   I    Hawk.  P.  C.  110. 

">  R.  V.  St.  (ifMr(j(,  1840,  9  C.  &  P.  48:{.  Tliis  iiasc  has  been  ovt-rruled 
(R.  V.  iJuchrorlh,  1892,  2  Q.  U.  S'A),  but  not  upon  this  point.  AiUt, 
p.   192,  n.  7. 


•204  A    DIGEST   OF 


Article  263. 

punishment  of  assaur/ps  with  intent  to  commit  sodomy. 

^  Every  one  is  guilty  of  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  ten  years  penal  servitude,  who  is  guilty 
of  any  assault  with  intent  to  commit  sodomy  or  of  any 
indecent  assault  upon  any  male  person  (Of.  Art.  187). 

Article  264. 

assaults  on  persons  protecting  wreck. 

^  Every  one  is  guilty  of  a  misdemeanour,  and  is  liable 
upon  conviction  thereof  to  seven  years  penal  servitude,  who 
assaults  and  strikes  or  wounds  any  magistrate,  officer,  or 
other  person  lawfully  authorised,  in  or  on  account  of  the 
execution  of  his  duty  in  or  concerning  the  preservation  of 
any  vessel  in  distress,  or  of  any  vessel  or  goods  or  effects 
>vrecked,  stranded,  or  cast  on  shore,  or  lying  under  water. 

Article  265. 

assaults  causing  actual  bodily  harm. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  five  years  penal  servitude,  who  commits 
an  assault  occasioning  actual  bodily  harm. 

Article  266. 
resisting  lawful  arrest. 

*  Every  one  is  guilty  of  a  misdemeanour,  and  is  liable  to 
imprisonment  with  hard  labour  for  three  years,  who,  being 

^  24  &  25  Vict.  c.  100,  s.  62.  The  last  words  of  this  enactment  would 
cover  the  case  of  an  indecent  assault  by  a  woman  on  a  man  ;  but  this  can 
hardlj-  have  been  intended.  Consent  is  no  defence  wlien  tlie  Ijoy  is  under 
thirteen.     See  43  &  44  Vict.  c.  45,  referred  to  in  Art.  263. 

2  24  &  25  Vict.  c.  100,  s.  37. 

3  Ibid.  s.  47. 

•  14  &  15  Vict.  c.  19,  8.  12.  By  s.  II  of  this  Act  any  person  whatso- 
ever may  apprehend  any  person  found  committing  any  indictable  offence 


THE    CRIMINAL    LAW  205 


liable  to  be  apprehended  under  the  provisions  of  the  Pre- 
vention of  Offences  Act  1851,  assaults  or  offers  violence  to 
any  person  by  law  authorised  to  apprehend  or  detain  him  or 
to  any  person  acting  in  his  aid  and  assistance. 


Article  267. 
assaults  punishable  with  two  years  imprisonment. 

Every  person  commits  a  misdemeanour,  and  is  liable  upon 
conviction  to  two  years  imprisonment  and  hard  labour, 

(fl.)  ^  who  assaults  any  person  with  intent  to  connnit  a 
felony  or  to  resist  or  prevent  the  lawful  apprehension  or 
detainer  of  himself  or  of  any  other  person  for  any  offence ; 

(6.)  ^  or  who  assaults,  resists,  or  wilfully  obstructs  any  peace 
officer  in  the  due  execution  of  his  duty,  or  any  person  acting 
in  aid  of  such  officer ; 

(c.)  -or  who  assaults  any  officer  of  a  workhouse  or  relieving 
officer  in  the  due  execution  of  his  duty,  or  any  person  acting 
in  aid  of  such  officer  ; 

{d.)  ^  or  who  indecently  assaults  any  female  ; 

(c.)  *  or  who  by  threats  or  force  obstructs,  or  prevents,  or 
endeavours  to  obstruct  or  prevent  any  clergyman  or  other 
minister  in  or  from  celebrating  divine  service  or  otherwise 
officiating  in  any  church,  chapel,  meeting-house,  or  other 
place  of  divine  worship,  or  in  or  from  the  performance  of  his 
duty  in  the  lawful  burial  of  the  dead  in  any  church3'ard  or 
other  burial  place  ; 

(/.)  ^  or  who  strikes  or  offers  any  violence  to,  or  arrests  upon 

in  the  night,  and  may  convey  him  or  rleliver  him  to  some  constable  or 
other  peace  officer  to  be  conveyed  as  soon  as  may  be  before  a  justice. 

'  -24  &  '2r>  Vict.  c.  10ft,  s.  .SS;  s.  41  was  repealed  by  M  k.  .Sf)  Vict.  c.  .S'J. 
This  applies  to  assaults  oil  sjiecial  constables  ap[)oiiited  under  I  &  '1  Will.  4, 
<:.  41,  see  s.  IJ,  and  lf> county  constables,  see  2  &  .S  Vict.  <-.  i(.S,  s.  8.  As 
to  assaults  on  constables  genei'ally  punishable  summarily,  see  ',\A  it  WTt  Vict. 
c.  112,  8.  12,  and  48  &  49  Vict.  c.  75,  s.  2. 

2   13  &  14  Vict.  c.  101,  s.  9. 

^  24  fc  25  Vict.  c.  100,  s.  52.  In  cases  of  indecent  assault  consent  is 
no  defence  if  the  girl  is  under  thirteen,  43  &  44  Viet.  e.  45.      See  Art.  262. 

<  24  k  25  Vict.  c.   100,  s.  3«. 

4  Ibid. 


206  A    DI(7EST    OF 


or  under  the  pretence  of  executing  any  civil  process,  any 
clergyman  or  other  minister  engaged  in  or  to  the  knowledge 
of  the  offender  about  to  engage  in  any  of  the  rites  or  duties 
mentioned  in  the  last  clause,  or  to  the  knowledge  of  the 
offender  going  to  perform  the  same,  or  returning  from  the 
performance  thereof 

Article  268. 
punishment  of  common  assault  on  indictment. 

^  Every  person  who  commits  a  common  assault  is  guilty  of 
a  misdemeanour,  and  is  liable  on  conviction  thereof  to 
imprisonment  for  one  year  with  hard  labour. 

The  punishment  specified  in  this  chapter  can  be  inflicted 
only  in  cases  in  which  the  offender  is  convicted  on  an  indict- 
ment [?  or  information]. 

'  24  &  25  Vict.  c.  100,  s.  47. 


THE    CRIMINAL    LAW  207 


CHAPTER  XXVIII 

^BAPE,  ETC. 

Article  269. 

defixition  of  carnal  knowledge. 

-  Carnal  knowledge  means  the  penetration  to  any  the 
slightest  degree  of  the  organ  alleged  to  have  been  carnally 
known  by  the  male  organ  of  generation. 

Article  270. 
definition  of  rape. 

3  Rape  is  the  act  of  having  carnal  knowledge  of  a  woman 
without  her  conscious  permission,  such  permission  not  being 
extorted  by  force  or  fear  of  immediate  bodily  harm ;  but  if 
such  permission  is  given,  the  act*  does  not,^  except  in  the 
case  next  hereinafter  mentioned,  amount  to  rape,  although 
such  permission  may  have  been  obtained  by  fraud,  and 
although  the  woman  may  not  have  been  aware  of  the  nature 
of  the  act. 

*'  Whereas  before  the  Criminal  Law  Amendment  Act  1885 

'  Draft  Code,  Part  X.  ss.  207-11. 

2  24  &  25  Vict.  c.  100,  s.  63,  and  see  R.  v.  Cox,  1832,  1  Moo.  C.  C. 
337,  and  /?.  v.  Allen,  1839,  9  C.  &  P.  31,  decided  on  the  earlier  enact- 
ment, 9  (ieo.  4,  c.  31,  8.  18.  Proof  of  emission  is  not  needed  under  the 
Criminal  Law  Amendment  Act  1885,  see  R.  v.  Marsden,  1891,  2  Q.  B. 
149. 

3  See  the  cases  in  the  Illustrations,  and  see  1  Russ.  Cr.  858,  &c. 

^  See  R.  V.  Dee,  Irish  C.  C.  R. ,  reported  in  Law  Timti*,  Jan.  24,  1884. 

'•  It  would,  however,  amount  to  an  offence  under  Article  194  (/).  The 
effect  of  the  Criminal  Law  Amen<lmcnt  Act  appears  to  be  that  A*,  v.  Flat- 
Ittrtj  is  no  longer  law,  thougli  it  was  recognised  as  having  create<l  tloubts 
as  to  R.  V.  liarroir,  &c.,  which  doubts  are  declared  to  have  been  well 
founded,  but  I  think  the  point  doubtful. 

*■•  48  k  49  Vict,  c  69,  s.  4.  Tiic  <I<)ul)tH  refcrrcl  to  were  founded 
on  the  cases  f»f  R.  v.  F'ul/tn/,  IH~~,  •_'<.>.  |;.  | ».  Jld,  .iii.l  /.'.  v.  lUirntw, 
1  C.  C.  R.   L'>6. 


208  A    DIGEST   OF 

doubts  were  entertained  whether  a  man  who  induces  a 
married  woman  to  permit  him  to  have  connection  with  her 
by  personating  her  husband  is  or  is  not  guilty  of  rape,  it  was 
by  that  Act  enacted  and  declared  that  every  such  offender 
should  be  deemed  to  be  guilty  of  rape. 

Article  271. 
other  provisions  as  to  rape. 

(1.)  ^  A  husband  [it  is  said]  cannot  commit  rape  upon  his 
wife  by  carnally  knowing  her  himself,  but  he  may  do  so  if 
he  aids  another  person  to  have  carnal  knowledge  of  her. 

(2.)  ^  A  boy  under  fourteen  years  of  age  is  conclusively 
presumed  to  be  incapable  of  committing  rape. 

(3.)  ^  A  woman  may  be  guilty  of  rape  as  a  principal  in  the 
second  degree. 

Illustratio7is. 

(1.)  *  A  has  connection  with  B,  a  woman  who  at  the  time  of 
the  connection  is  in  a  state  of  insensibility.     A  has  ravished  B. 

(2.)  ^  A  has  connection  with  B,  an  idiot,  Avho  by  reason  of 
her  idiotcy  submits,  but  does  not  permit  the  act.  A  has 
ravished  B. 


1  1  Hale,  P.  C.  629.  Hale's  reason  is  that  the  wife's  consent  at  marriage 
is  irrevocable.  It  may  be  doubted  however  whether  the  consent  is  not 
confined  to  the  decent  and  proper  use  of  marital  rights.  If  a  man  used 
violence  to  his  wife  under  circumstances  in  whicli  decency  or  her  own 
health  or  safety  required  or  justified  her  in  refusing  her  consent,  I  think 
he  might  be  convicted  at  least  of  an  indecent  assault.  Hale  gives  no 
authority  for  it,  but  makes  the  remark  only  by  way  of  introduction  to  the 
qualification  contained  in  the  latter  part  of  clause  (1),  for  which  Lord 
Castlthaveii' s  Case,  1631,  3  St.  Tr.  432,  is  an  authority. 

2  Hale,  P.  C.  630.  See  R.  v.  Groomhridge,  1836,  7  C.  &  P.  582.  The 
presumption  extends  to  cases  of  assault  with  intent  to  ravish.  See  E.  v. 
Phillips,  1839,  8  C.  &  P.  736.  The  occasional  incorrectness  of  this  pre- 
sumption is  shown  by  R.  v.  Read,  1848,  1  Den.  377.  The  presumption 
is  founded,  I  believe,  on  the  notion  that  a  boy  under  fourteen  cannot  be  a 
father,  and  could  not  thus  inflict  what  was  regarded  as  the  principal 
injury  involved  in  rape. 

3  R.  V.  Ram,  1893,  17  Cox  C.  C.  609. 

*   R.  V.  Camplin,  1845,  1  Den.  C.  C.   89. 

5  R.  V.  N.  Fletcher,  1859,  Bell,  C.  C.  6»  ;  referring  to  the  definition 
given  in  Westm.  2,  c.  34. 


THE    CRIMINAL    LAW  209 

(3.)  ^  A  has  connection  with  B,  an  idiot,  who  permits  the  act 
from  mere  sexual  instinct,  but  without  understanding  its  nature. 
A  has  not  ravished  B. 

Article  272. 

punishment  of  rape  and  carnally  knowing  children 
under  thirteen, 

-  Every  one  is  guilty  of  felony  and  liable  to  penal  servitude 
for  life,  who 

(a.)  commits  rape,  or 

(Jb.)  ^  unlawfully  and  carnally  knows  any  girl  under  the 
age  of  thirteen  years  (see  Article  273  A). 

Article  273. 
carnally  knowing  girls  between  thirteen  and 

SIXTEEN. 

Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  two  years  imprisonment  and  hard 
labour,  who 

(1.)  *  attempts  to  have  unlawful  carnal  knowledge  of  any 
girl  under  the  age  of  thirteen ; 

(2.)  •''  unlawfully  and  carnally  knows  or  attempts  to  have 
unlawful  carnal  knowledge  of  any  girl  being  of  or  above  the 
age  of  thirteen  and  under  the  age  of  sixteen ;  provided 
that  it  is  a  sufficient   defence  to  any  charge  of  either  of 

'  R.  V.  C.  Fletcher,  1866,  1  C.  C.  R.  39.  In  R.  v.  Barralt,  1873  (2 
C.  C.  R.  81),  in  which  the  facts  are  similar  to  those  in  the  case  of  iV. 
Fletcher,  the  judges  said  that  there  was  no  inconsistency  between  the  cases 
of  X.  FlfJchf-.r  and  C.  Fletcher. 

-  24  &  25  Vict.  c.  100,  a.  48. 

■'  48  &  49  Vict.  c.  69,  h.  4.  The  ordinary  rule  as  to  the  necessity  of 
proving  capacity  for  knowing  that  the  act  was  wrong  (ante  Art.  27)  pre- 
vailH  when  a  l>oy  unrler  fourteen  is  accused  of  this  ottcnce,  as  also  does  the 
rule  stated  in  subs.  (2)  of  tiie  la.st  Article  ;  //.  v.  H ViiVr,  IS92,  2  Q.  B. 
600,  17  Cox.  C.  C.  arti.  it  is  a  qucHti<in  whether  he  can  l)e  convicted  of 
an  attempt  to  ravish  ;  but  he  can  be  convicted  of  an  indecent  assault.  l)y 
r-mori  of  48  &  49  Vict.  c.  69,  h.  9  ;  //.  v.  Williams,  IHU'.i,  I  Q.  B.  32(1. 
4S  tc  49  Vict.  c.  69,  s.  4. 

Ibid.  H.  .').  A  girl  over  thirteen  and  un<ler  sixteen  who  aitls  and  alMJts 
the  commiHsion  of  this  offence  with  herself  is  not  guilty  of  any  offence. 
J{.  V.  Tyrrell  [I Hd4],  1  Q.  H.  710. 


210  A    DIG' EST   OF 


these  offences  if  it  shall  be  made  to  appear  to  the  Court  or 
jury  before  whom  the  charge  is  brought  that  the  person  so 
charged  had  reasonable  cause  to  believe  that  the  girl  was 
of  or  above  the  age  of  sixteen  years ;  and 

Provided  also  that  no  prosecution  may  be  commenced  for 
any  such  offence  more  than  three  months  after  the  commis- 
sion of  the  offence  :  or 

(3.)  ^  unlawfully  and  carnally  knows  or  attempts  to  have 
unlawful  carnal  knowledge  of  any  female  idiot  or  imbecile 
woman  under  circumstances  which  do  not  amount  to  rape, 
but  which  prove  that  the  offender  knew  at  the  time  of  the 
commission  of  the  offence  that  the  woman  was  an  idiot  or 
imbecile. 

Article  273  A. 

PUNISHMENT   OF    YOUTHFUL   OFFENDERS   UNDER   THE 
CRIMINAL   LAW   AMENDMENT   ACT,    1885. 

2  An  offender  under  Article  272  (b.)  or  Article  273  (1) 
whose  age  P  at  the  time  of  the  offence]  does  not  exceed  six- 
teen years  may  instead  of  being  sentenced  to  imprisonment 
be  sentenced  to  be  ^  whipped  ;  and  if  expedient  in  addition  to 
the  sentence  of  whipping  he  may  be  sent  to  a  certified  re- 
formatory school  for  not  less  than  ^  two  years  and  not  more 
than  five  years,  and  be  detained  in  custody  for  seven  days 
before  he  is  sent  to  such  reformatory  school. 

1  48  &  49  Vict.  c.  69,  s.  4. 

2  Ibid. 

3  So  held  by  Lord  Coleridge,  C.J.,  after  consulting  with  Stephen,  .J.,  at 
Swansea  Summer  Assizes,  August  1890. 

••  In  the  manner  specified  in  Art.  12  (b),  ante,  p.  8. 

^  This  provision  would  appear  not  to  be  affected  by  56  &  57  Vict.  c.  48, 
s.  I.  Under  that  Act  the  minimum  period  of  detention  in  a  certified 
reformatory  school  is  three  years,  v.  ante,  p.  16. 


THE    CRIMINAL    LAW  211 


CHAPTER  XXIX 

crimes  affecting  conjugal  and  parental  rights- 
big  a  my— a  bd  uction 

Article  274. 
^  definition  and  punishment  of  bigamy. 

2  Every  one  commits  the  felony  called  bigamy,  and  is  liable, 
upon  conviction  thereof,  to  seven  years  penal  servitude,  who, 
being  married,  marries  any  other  person  during  the  life  of  his 
or  her  ^vife  or  husband. 

^The  expression  "being  married"  means  being  legally 
married.  The  word  "  marries  "  means  goes  through  a  form 
of  marriage  which  the  *  law  of  the  place  where  such  form  is 
used  recognises  as  ^binding,  whether  the  parties  are  by 
that  law  competent  to  contract  marriage  or  not,  and  although 
by  their  fraud  the  form  employed  may,  apart  from  the 
^bigamy,  have  been  insufficient  to  constitute  a  binding 
marriage. 

Provided  that  this  Article  does  not  extend 

(i.)  ^  to  any  person  who  marries  again  during  his  wife's  or 
her  husband's  lifetime,  but  in  the  honest  belief  on  reasonable 
grounds  that  she  or  he  is  dead. 

(ii.)  "  to  a  second  marriage  contracted  elsewhere  than  in 
England  and  Ireland  by  any  other  than  a  subject  of  His 
Majesty  ;  nor 

'  2  Hint.  Cr.  Law,  430. 

-  24  &  2'i  Vict.  c.  100,  8.  57,  as  explained  hy  the  autlioiities  referred  to 
in  the  IlluHtrations.     See  note  to  Article  35,  nute. 

•'•  See  Ilhislration  (2). 

<  Hurt  V.  Burt,  1860,  29  L.  J    N.  S.,  P.  1).  A.  133. 

^  See  Illustration   (3). 

•  See  IlIuHtration   (A). 

'   R.  V.  Tohon,  1889,  23  t^  15.   !>.   168. 

*  The  Act  does  extend  to  a  Huhject  of  Hift  Majesty  who  has  contracted 
a  second  marriaf^e  in  Scotland  during  tlie  lifetime  of  a  wife  previously 
married  in  Scotlainl  ;  //.  v.  Tojtpivf/,  1856,  I).  A  I'.  647.  'I'he  same  rule 
would,  of  course,  a|)ply  to  a  higamouM  marriage  in  any  foreign  country. 

1'  2 


212  A    DIGEST   OF 

(iii.)  to  any  person  marrying  a  second  time,  whose  husband 
or  wife  has  been  continually  absent  from  .such  person  for 
seven  years  then  last  past,  and  has  not  been  known  by  such 
person  to  be  living  within  that  time. 

1  The  burden  of  proving  such  knowledge  is  upon  the  pro- 
secutor when  (■-  but  not  until)  the  fact  that  the  parties  have 
been  continually  absent  for  seven  j'ears  has  been  proved ;  nor 

(iv.)  to  any  person  who  at  the  time  of  such  second  marriage 
was  divorced  from  the  bond  of  the  first  marriage,  nor  to  any 
person  whose  first  marriage  has  been  declared  void  by  the 
sentence  of  any  Court  of  competent  jurisdiction. 

^  A  divorce  a  vinculo  matrimonii  pronounced  by  a  foreign 
Court  between  persons  who  have  contracted  marriage  in 
England,  and  who  continued  to  be  domiciled  in  England,  on 
grounds  which  would  not  justify  such  a  divorce  in  England, 
is  not  a  divorce  within  the  meaning  of  this  clause. 


Illustrations. 

(1.)  *  A  marries  B,  a  person  within  the  prohibited  degrees 
of  affinity,  and  during  B's  lifetime  marries  C.  A  has  not 
committed  bigamy. 


1  R.  V.  Curgerioen,  1865,  1  C.  C.  R.  1. 

2  A'.  V.  Jone.s,  1883,  11  Q.  B.  D.  118. 

^  B.  V.  Lolhy,  1812,  R.  &  R.  237.  The  decision  does  not  refer  to 
domicile,  but  this  qualification  appears  from  later  cases  to  be  required.  See 
Harvey  v.  Fmiiie,  1880,  L.  R.  5  P.  D.  153,  6  P.  D.  32,  and  8  App.  Ca.  43, 
where  R.  v.  Lolhy  is  explained  as  above  by  Lord  Selbome  at  p.  54,  and 
Lord  Blackburn  at  p.  59.  Harvey  v.  Farnie  was  the  converse  of  R.  v. 
Lolley.  It  recognised  a  Scotch  divorce  as  dissolving  a  marriage  between 
people  domiciled  in  Scotland  at  the  time  of  the  divorce,  though  the  marriage 
took  place  in  England,  the  wife  being  domiciled  at  the  time  of  the  marriage 
in  England.  The  cases  on  the  effect  of  foreign  judgments  on  marriage  are 
collected  in  2  Sm.  L.  C.  897-904,  9th  Edition.  See  Le  Mesurier  v.  Le 
Mesurier  [1895],  Ap.  Cas.   527. 

A  question  as  to  the  exact  time  at  which  a  person  can  be  said  to  be 
divorced  maj'  arise.  In  1  Hale,  P.  C.  694,  a  case  is  mentioned  in  which  a 
person  marrying  after  a  sentence  of  divorce,  but  pending  an  appeal,  was 
held  to  be  within  a  similar  proviso  in  1  Ja.  1,  c.  11.  In  i?.  v.  Hale,  tried 
at  the  Leeds  summer  assizes,  1875,  a  woman  pleaded  guilty  to  a  charge  of 
bigamy  before  Lindley,  J. ,  she  ha\-ing  married  after  the  decree  nisi  was 
pronounced,  but  before  it  became  absohite,  which  it  afterwards  did.  The 
judge's  attention,  however,  was  not  directed  to  the  passage  in  Hale. 

*  R.  V.  Chadwick,  1847,  11  Q.  B.  205. 


THE    CRIMIXAL    LAW  213 

(2.)  ^  A  marries  B,  and  during  B's  lifetime  goes  through 
a  form  of  marriage  with  C,  a  person  within  the  prohibited  degrees 
of  affinity.     A  has  committed  bigamy. 

(3.)  -  A  marries  B  in  Ireland,  and  during  B's  lifetime  goes 
through  a  form  of  marriage  with  C  in  Ireland  which  is  invalid, 
because  both  A  and  C  are  Protestants,  and  the  marriage  is 
performed  by  a  Roman  Catholic  priest.     A  commits  bigamy. 

(4.)  ^  A,  married  to  C,  marries  B  in  C's  lifetime  by  banns, 
B  (the  woman)  being  married,  for  purposes  of  concealment, 
under  a  false  name.      A  has  committed  bigamy. 

(5)  *  A,  married  to  B,  marries  C  in  B's  lifetime,  in  the  colony 
of  Victoria. 

In  order  to  show  that  A  committed  bigamy  it  must  be  proved 
that  the  form  by  which  he  was  married  was  one  recognised  as  a 
regular  fonn  of  marriage  by  the  law  in  force  in  Victoria. 

(6.)  °  A,  married  to  B,  sees  B  washed  overboard  from  a  ship 
in  mid  ocean,  and  never  hears  of  B's  rescue.  B  is  in  fact 
rescued,  and  A  marries  C  in  B's  lifetime.  A  has  not  committed 
bigamy. 

Article  275. 

principals  in  second  degree  in  bigamy. 

^  Every  one  is  a  principal  in  the  second  degree  in  the 
crime  of  bigamy  who,  being  unmarried,  knowingly  enters 
into  a  marriage  which  renders  the  other  party  thereto  guilty 
"f  bigamy. 

Article  276. 
11{regul.\r  marriages  under  the  marriage  act  of  1823. 

'  Every  one  is  guilty  of  felony,  and  is  liable  upon  convic- 
tion thereof  to  fourteen  years  penal  servitude,  who  knowingly 
and  wilfully 

'    /.'.   V.    lirawn,    184.3,    1   C.   &   K.    144  ;    /.'.  v.  Alhn,  1872,  1  C.  C.  R. 

■Mr,. 

-  It.  V.  Allen,  ub.  xup.  ])[).  'M'.\-'t,  diHapproving  of  11.  v.  Fajiniin/,  17  Ir. 
C.   L.  289. 

•'  J{.  V.  Penson,  I8.S2,  5  C.  &  P.  412.  In  //.  v.  liea,  1872,  1  C.  C.  R. 
.'{(5.>,  the  prisoner  at  the  biganiouB  marriage  (before  the  regiHtrar)  gave  u 
falho  (JhriHtian  name,  and  waH  helil  to  l)e  riglitly  ecjnvicted. 

'   hurf  V.  liar/,  IHCU,  2ii  L.  .1.  N.  S.,  P.   1).  A.  I.3.S. 

•   /{.  V.   Tolaon,  188!),  "i.'i  g.  15.   I).    KJS. 

«   //.  V.  lirawn, b  W'^hh,  IHVA,   1  C.  it  i\.    111. 

'    J  Ceo.  4,  <;.  Hi,  h.  'J I. 


214  A    DIGEST   OF 


(a.)  solemnises  matrimony  in  any  other  place  than  a 
church  or  such  public  chapel  wherein  banns  may  be  lawfully 
published,  or  at  any  other  time  than  between  the  hours  of 
1  eight  in  the  forenoon  and  three  in  the  afternoon,  unless  by 
special  licence  from  the  Archbishop  of  Canterbury  ;  or 

(b.)  solemnises  matrimony  without  due  publication  of 
banns,  unless  licence  of  marriage  be  first  had  and  obtained 
from  some  person  having  authority  to  grant  the  same  ;  or 

(c.)  falsely  pretending  to  be  in  holy  orders,  solemnises 
matrimony  according  to  the  rites  of  the  Church  of  England. 

All  prosecutions  for  any  felony  mentioned  in  this  Article 
must  be  commenced  within  three  years  after  the  offence 
committed. 

-  Provided  also  that  nothing  in  this  Article  contained 
applies  to  the  solemnisation  of  marriage  under  the  pro- 
visions of  any  Act  of  Parliament  passed  after  the  18th  of 
July,  1823. 

Article  277. 

irregular  marriages  under  the  marriage  act  of  1837. 

2  Every  one  is  guilty  of  felony  who  knowingly  and  wilfully 
(a.)  solemnises  any  marriage  in  England,  except  by  special 
licence,  in  any  other  place  than  a  church  or  chapel  in  which 
marriages  may  be  solemnised  according  to  the  rites  of  the 
Church  of  England,  or  than  the  registered  building  or  office 
specified  in  a  ^  notice  and  certificate  used  under  the  6  &  7 
Will.  4,  c.  85  (^  except  in   the  case  of  a  marriage  between 

1  49  Vict.  c.  14,  s.  2. 

-  This  proviso  is  added  to  express  the  effect  of  subsequent  legislation  on 
the  subject.  The  Acts  referred  to  are  6  Geo.  4,  c.  92  ;  11  Geo.  4  &  1 
Will.  4,  c.  18  ;  6  &  7  Will.  4,  c.  85  ;  7  Will.  4  &  1  Vict.  c.  22,  and  some 
others.  The  Act  of  1 823  assumes  that  all  marriages  are  solenmised  in  the 
Established  Church.  The  Act  of  1837,  6  &  7  Will.  4  c.  85,  provides  for 
the  solemnisation  of  marriages  elsewhere. 

^  6  &  7  Will.  4,  c.  85,  s.  39.  As  to  similar  felonies  by  superintendent- 
registrars  and  registrars  of  marriage  see  sect.  40. 

*  Sect.  7,  relating  to  the  certificate,  is  repealed,  37  &  38  Vict.  c.  35. 

^  No  such  exception  is  contained  in  the  Act  of  1823  ;  but  it  can  hardly 
have  been  intended  to  apply  to  such  marriages.  See  10  &  11  Vict.  c.  58 
(passed  in  consequence  of  the  decision  in  K.  v.  Millin,  1844,  10  C.  &  F. 
534). 


THE    CRIMINAL    LAW  215 

two  of  the  Society  of  Friends,  commonly  called  Quakers,  or 
between  two  persons  professing  the  Jewish  religion,  according 
to  the  usages  of  the  Jews) ;  or 

(b.)  who,  in  any  such  registered  building  or  office, 
solemnises  any  marriage  in  the  absence  of  a  registrar  of 
the  district  in  which  such  registered  building  or  office  is 
situated  ;  or 

(c.)  who  solemnises  any  marriage  in  England  (except  by 
licence)  Avithin  ^  one  day  after  the  entry  of  the  notice  to  the 
superintendent-registrar,  or  after  three  men  ths  after  such  entry. 

-  Every  prosecution  for  any  felony  mentioned  in  this  Article 
must  be  commenced  within  three  years  of  the  offence 
committed. 

Article  278. 
abduction  with  ixtext  to  marry. 

Every  one  commits  felony  and  is  liable,  upon  conviction, 
to  fourteen  years  penal  servitude,  who,  with  intent  to  marry 
or  carnally  know  any  woman,  or  with  intent  to  cause 
any  woman  to  be  married  or  carnally  known  by  any  other 
person, 

(a.)  ^  from  motives  of  lucre,  takes  away  or  detains  against 
her  Avill  any  such  woman  having  any  such  interest  in  property 
as  is  hereinafter  mentioned  ;  or 

(Jj.)  2  fraudulently  allures,  takes  away,  or  detains  any  such 
woman,  being  under  the  age  of  twenty-one  years,  and  having 
any  such  interest  in  property  as  is  hereinafter  mentioned, 
out  of  the  possession  and  against  the  will  of  her  father  or 
mother,  or  of  any  other  person  having  the  lawful  care  or 
charge  of  her  ;  (jr 

(c.)*by  force  takes  away  or  detains  against  her  will  any 
woman  of  any  age. 

'   Formerly  twenty-one  tlay«,  but  Bee  19  &  '2(t  Vict,  c   1  lit,  w.  !(. 

'•i  6  4  7  Will.  4,  c.  85,  b.  41. 

^  24  &  '2')  Vict.  c.  100,  H.  53  (redrawn).  The  nieuiiing  of  tin-  wonls 
"  jK>HHe«Hion  "  and  "  fruudulently  "  was  coiiHidenilil}'  diHcUKHe<l  in  /{.  v. 
Hum II,  1863,  L.  &  C.  354  ;  hut  as  the  Court  didtTcd  on  tlie  facta  of  the 
(«He,  no  definite  eontluHion  waH  arrived  at. 

<  Ibid.  H.  54. 


216  A   DIGEST   OF 


If  any  woman,  against  whom  either  of  the  offences  defined 
in  clauses  (a.)  and  (/).)  is  committed,  has  any  interest,  legal  or 
equitable,  present  or  future,  absolute,  conditional,  or  con- 
tingent, in  any  real  or  personal  estate,  or  is  presumptive 
heiress  or  co-heiress,  or  presumptive  next  of  kin,  or  one  of 
the  presumptive  next  of  kin  to  any  one  having  such  interest, 
any  person  convicted  of  either  of  the  said  offences  against 
her  is  incapable  of  taking  any  estate  or  interest,  legal  or 
equitable,  in  any  real  or  personal  property  of  such  woman, 
or  in  which  she  has  any  interest,  or  which  comes  to  her  as 
such  heiress,  co-heiress,  or  next  of  kin,  and  if  any  such 
marriage  has  taken  place,  such  property  must,  upon  such  con- 
viction, be  settled  in  such  manner  as  the  Court  of  Chancery 
in  England  or  Ireland  may,  upon  any  information  at  the  suit 
of  the  Attorney-General,  appoint. 

^  In  prosecutions  for  offences  against  this  Article,  a  woman 
who,  having  been  taken  away,  has  been  married  to  the 
offender,  is,  notwithstanding  that  marriage,  competent  to  be  a 
witness  against  him. 

Article  279. 
abduction  of  girls  under  sixteen. 

2  Every  one  commits  a  misdemeanour  and  is  liable  to  two 
years  imprisonment  with  hard  labour,  who  unlawfully  takes,  or 
causes  to  be  taken,  any  unmarried  girl,  being  under  the  age 
of  sixteen  years,  out  of  the  possession  and  against  the  will  of 
her  father  or  mother,  or  of  any  other  person  having  the  lawful 
care  or  charge  of  her. 

The  taking  must  be  a  taking  under  the  power,  charge,  or 
protection  of  the  taker,  but  it  is  immaterial  whether  the  girl 
is  taken  with  her  own  consent,  or  at  her  own  suggestion,  or 
against  her  will. 

The  expression  "  taking  out    of   the   possession "    means 

1  B.  V.  Wakefield,  1827,  2  Lew.  279;  R.  v.  Perry,  1794,  R.  &  M.  at 
p.  354. 

2  24  &  25  Vict.  c.  100,  s.  55,  as  explained  by  the  case  referred  to  in 
the  Illustrations. 


THE    CRIMINAL    LAW  217 

taking  the  girl  to  some  place  where  the  person  in  whose 
charge  she  is  cannot  exercise  control  over  her,  for  some  pur- 
pose inconsistent  with  the  objects  of  such  control.  A  taking 
for  a  time  only  may  amount  to  abduction. 

If  the  consent  of  the  person  from  whose  possession  the 
girl  is  taken  is  obtained  by  fraud,  the  taking  is  deemed  to  be 
against  the  will  of  such  person. 

The  fact  that  the  offender  supposes,  in  good  faith  and  on 
reasonable  grounds,  that  the  girl  is  more  than  sixteen  years 
of  age,  is  immaterial ;  but  [it  seems]  it  is  necessary  that  he 
should  either  know,  or  have  reason  to  believe,  that  she  was 
under  the  lawful  care  or  charge  of  her  father,  mother,  or 
some  other  person. 

Illustrations. 

(1.)  ^  A  and  B,  two  girls  under  sixteen,  run  awa}'  from  home 
together.     Neither  abducts  the  other. 

(2.)  -  A  persuades  B,  a  girl  under  sixteen,  to  leave  her  father's 
house,  and  sleep  with  him  for  three  nights,  and  then  sends  her 
back.     A  has  abducted  B. 

(3.)  ^'  A,  a  lady,  persuades  B,  a  girl  under  sixteen,  to  leave  her 
father's  house,  and  come  to  A's  house  for  a  short  time,  for  the 
purpose  of  going  to  the  play  with  her.     A  has  not  abducted  B. 

(4.)  *  A,  a  girl  under  sixteen,  asks  B,  by  whom  she  has  been 
seduced,  to  elope  with  her,  which  he  does.     B  commits  abduction. 

(5.)  ^  A  induces  B  to  permit  his  daughter  C  to  go  away  by 
falsely  pretending  that  he  (A)  will  find  a  place  for  C.  A 
abducts  C. 

(6.)  ^  A  takes  B,  a  girl  under  sixteen,  out  of  her  father's 
possession,  believing  her  upon  good  grounds  to  be  eighteen.  A 
has  abducted  B. 

(7)  "^  A  meets  B,  a  girl  under  sixteen,  in  the  street,  gets  her 
to  stay  with  him  some  hours,  during  which  interval   he  seduces 


'   /i.  V.  Aferuloirtt,  1844,  1  C.  &  K.  399,  as  explainwl  In-  note  to  li.   v. 
Kipftfi,  18.j(»,  4  Cox,  C.  C.  167  ;  and  /{.  v.  ManUelow,  ]Hr>:i,  D.  &  P.  159. 
-  Ji.  V.  Timmins,  18(J0,  Hell  C.  C.  27(i. 
^  Foiinilcd  on  a  diilnni  of  ('roiiijjton,  .).,  in  J{.  v.   TiinmiiiH  (xit/i.). 

*  H.   V.    Hinwdl,   1847,   ti  Cox,  C.  C.  '2r>\)  ;  and  se*;  li.  v.  Ilohiiis,  IH44, 
I  C.  *  K.  4.'j«. 

•  II.  V.  ll<^,Lmi,  1842,  Car.  &  Mar.  2'.4. 
"    //.   V.   Priiirr,   187.').  2  C.  I'.   K.    liVl. 

7   //.  V.  IlihUrt,  I8(i«,  1  C.  C.   K.   184. 


•218  A    DIGEST   OF 


her,  takes  her  back  to  the  place  where  he  found  her,  and  there 
leaves  her.  She  returns  home.  A  was  not  aware  at  the  time 
that  B  had  a  father  ur  mother  liviu".      A  has  not  abducted  B. 


Article  280. 
abduction  of  girls  under  eighteen. 

^  Every  person  commits  a  misdemeanour,  and  being  con- 
victed thereof  is  liable  to  two  years  imprisonment  with  hard 
labour,  who,  with  intent  that  any  unmarried  girl  under  the  age 
of  eighteen  years  should  be  unlawfully  and  carnally  knowTi  by 
any  man,  whether  such  carnal  knowledge  is  intended  to  be 
with  any  particular  man,  or  generally,  takes  or  causes  to  be 
taken  such  girl  out  of  the  possession  and  against  the  will  of 
her  father  or  mother,  or  any  other  person  having  the  lawful 
care  or  charge  of  her. 

It  is  a  sufficient  defence  to  any  charge  under  this  Article 
if  it  is  made  to  appear  to  the  Court  or  jury  that  the  person  so 
charged  had  reasonable  cause  to  believe  that  the  girl  was  of 

above  the  age  of  eighteen  years. 


Article  281. 
detaining  women  in  brothels. 

-  Every  one  commits  a  misdemeanour,  and  upon  conviction 
thereof  is  liable  to  imprisonment  with  hard  labour  for  two 
years,  who  detains  any  woman  or  girl  against  her  will — 

(1.)  in  or  upon  any  premises  with  intent  that  she  may  be 
unlawfully  and  carnally  known  by  any  man,  whether  any 
particular  man,  or  generally,  or 

(2.)  in  any  brothel. 

Where  a  Avoman  or  girl  is  in  or  upon  any  premises  for  the 
purpose  of  having  any  unlawful  carnal  connection,  or  is  in 
any  brothel,  a  person  shall  be  deemed  to  detain  such  woman 

1  48  &  49  Vict.  c.  69,  s.  7. 
-  Ibid.  s.  8. 


THE   CRIMINAL   LAW  219 

or  girl  in  or  upon  such  premises  or  in  such  brothel,  if,  with 
intent  to  compel  or  induce  her  to  remain  in  or  upon  such 
premises  or  in  such  brothel,  such  person  withholds  from  such 
woman  or  girl  any  wearing  apparel  or  other  property  belong- 
ing to  her,  or,  where  wearing  apparel  has  been  lent  or  other- 
wise supplied  to  such  woman  or  girl  by  or  b}'  the  direction  of 
such  person,  such  person  threatens  such  woman  or  girl  with 
legal  proceedings  if  she  takes  away  with  her  the  wearing 
apparel  so  lent  or  supplied. 

No  legal  proceeding,  whether  civil  or  criminal,  may  be 
taken  against  any  such  woman  or  girl  for  taking  away  or 
being  found  in  possession  of  any  such  wearing  apparel  as  was 
necessary  to  enable  her  to  leave  such  premises  or  brothel. 


Article  282. 
stealing  children  under  fourteen. 

^  Every  one  is  guilty  of  felony  and  is  liable,  upon  conviction 
to  seven  years  penal  servitude,  who 

(1.)  unlawfully,  either  by  force  or  fraud,  leads,  or  takes 
away,  or  decoys  or  entices  away,  or  detains  any  child  under 
the  age  of  fourteen  years  ;  or 

(2.)  receives  or  harbours  any  such  child,  knowing  it  to 
have  been  so  dealt  with, 

with  intent  to  deprive  any  parent  or  guardian,  or  other 
person  having  the  lawful  care  or  charge  of  such  child,  of  the 
possession  of  it,  or  with  intent  to  steal  any  article  about  or 
upon  the  person  of  such  child. 

Provided  that  this  Article  does  not  extend  to  any  person 
who  gets  possession  of  any  child,  or  takes  any  child  out  of 
the  possession  of  any  one  who  has  lawful  charge  of  it,  if  such 
jicrson  either  claims  a  right  to  the  possession  of  the  child,  ur 
(if  it  is  an  ilk-gitimate  child)  is  its  mother  or  claims  to  bi-  its 
father. 

'    -24  &  '_'")  X'ict.  .-.    KM),  H.    ')(!,  VV. 


220  A    DIGEST   OF 


CHAPTER   XXX 

offences  against  children  by  parents  and  others 

Article  283. 

neglecting  to  provide  food,  etc.,  for  children. 

^  Every  one  commits  a  misdemeanour  who,beingthe  parent, 
or  master,  or  mistress,  of  any  child  of  tender  years,  and  un- 
able to  provide  for  itself,  refuses  or  neglects  (being  able  to 
do  so)  to  provide  sufficient  food,  clothes,  bedding,  and  other 
^  necessaries  for  such  child,  so  as  thereby  to  injure  the  health 
of  such  child. 

Article  284. 

cruelty  to  children. 

^  Every  person  over  the  age  of  sixteen  years  commits  a 
misdemeanour,  and  is  liable  upon  conviction  thereof  (subject 
to  the  exception  mentioned  in  Article  285)  to  two  years 
imprisonment  with  hard  labour,  or  a  fine  not  exceeding  one 
hundred  pounds,  or  both,  who 

1  Friend's  Case,  1802,  R.  &  R.  20  ;  N.  v.  Ryland,  1867,  1  C.  C.  R.  99. 
It  is  necessary  to  prove  actual  injury  to  the  child's  health,  R.  v.  Phi/poft, 
1853,  D.  &  P.  179,  and  R.  v.  Hogan,  1851,  2  Den.  277,  and  that  the 
defendant  actuallj-  has,  not  merely  that  he  might  get  from  the  relieving 
officer,  the  means  of  providing  for  the  child  :  R.  v.  Chandltr,  1855,  D.  &  P. 
453.  The  common  law  misdemeanour  is  of  less  practical  importance  since 
the  passing  of  the  Prevention  of  Cruelty  to  and  Protection  of  Children 
Acts,  1889-1894.     See  Articles  284-5. 

2  It  is  doubtful  whether  this  includes  medical  attendance  as  regards 
any  one  but  a  parent  who  is  under  a  statutory  obligation  to  provide  it. 
See  Article  286  ;  R.  v.  Downes,  1875,  1  Q.  B.  D.  25,  R.  v.  Senior  [1899], 
1  Q.  B.  283. 

3  57  &  58  Vict.  c.  41,  s.  1.  The  Prevention  of  Cruelty  to  Children 
Act,  1894.  This  Act  consolidates  and  repeals  the  Prevention  of  Cruelty 
Lo  and  Protection  of  Children  Act,  1889,  and  the  previous  Prevention  of 
Cruelty  to  Children  Act,  1894.  Ss.  6,  7,  &  8  of  the  present  Act  give 
power  to  the  Court,  upon  the  conviction  of  a  person  under  s.  1,  to  make 
an  order  giving  custody  of  the  child  to  some  fit  person,  having  regard,  as 
far  as  possible,  to  "the  religious  persuasion  to  which  the  cliild  belongs." 
These  offences  are  also  punishable  summarily. 


THE    CRIMINAL    LAW  221 

having  the  custody,  charge,  or  care  of  any  child  under  the 
age  of  sixteen  years,  wilfully  assaults,  ill-treats,  neglects, 
abandons,  or  exposes  such  child,  or 

causes  such  child  to  be  assaulted,  ill-treated,  neglected, 
abandoned,  or  exposed, 

in  a  manner  likely  to  cause  such  child  unnecessary  suffering 
or  injury  to  its  ^  health. 

Arttcle  285. 

CRUELTY   TO   CHILDREN    BY    INTERESTED    PERSON. 

-  If  it  is  proved  that  a  person  indicted  under  the  1st 
section  of  the  Prevention  of  Cruelty  to  Children  Act,  1894 
(Art.  284),  was  ^  interested  in  any  sum  of  money  accruable 
or  payable  in  the  event  of  the  death  of  the  child,  and  knew 
that  such  sum  of  money  was  accruing  or  becoming  payable, 

such  person  is  liable,  upon  conviction,  to  penal  servitude 
for  any  term  not  exceeding  five  years  in  lieu  of  an}'  other 
penalty,  or  to 

a  fine  of  two  hundred  pounds. 

Article  286. 
abandoning  children  under  two. 

Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  five  years  penal  servitude, 

■•  who  unlawfully  abandons  or  exposes  any  child  being 
under  the  age  of  two  year.s,  whereby  the  life  of  such  child 
is  oncJangered  or  its  health  has  been  or  is  likely  to  be 
permanently  injured. 

'  It  is  enacted  (».  1,  huIis.  [I])  tli;it  "  injury  to  or  lo.s.s  of  .siglit,  or 
hearing,  or  linih,  or  organ  of  the  hody  "  is  injury  to  a  child'H  liealth.  It 
is  prohahlc  tlmt  injury  to  or  Iohs  of  one  of  the  other  sensea  would  he  lield 
to  Ik;  so.      Neitlier  "  limb  "  nor  "  organ  "  is  (htintd. 

-  57  &  58  Vict.  c.  41,  B.  1,  HubH.  (.'J). 

'  A  person  is  intercHted  in  such  money  "  if  he  has  any  share  in  or  any 
l)enefit  from  the  payment  of  that  money,  though  ho  is  jiot  a  person  to 
whom  it  is  legally  payable."     S.   I,  subs.   (4). 

*  24  & 'J5  Vi<t.  <-.  Km,  H.  27.  I'art  of  sect.  2(i  refers  to  (he  same 
subject.      See  Art.  2»)l)  dlj. 


222  A    DIGEST   OF 


The  words  "  abandon  "  and  "  expose "  include  a  wilful 
omission  to  take  charge  of  the  child  on  the  part  of  a  person 
legally  bound  to  do  so,  and  any  mode  of  dealing  with  it 
calculated  to  leave  it  exposed  to  risk  without  protection. 


Illttstrations. 

(1.)  ^  B,  A's  wife,  living  apart  from  A,  leaves  C,  their  child, 
nine  months  old,  lying  in  the  road  outside  A's  door.  A,  know- 
ing its  position,  lets  it  lie  there  from  7  p.m.  till  1  a.m.  A's 
mother,  D,  knowing  the  child  is  there,  and  being  in  her  house, 
acts  in  the  same  way  as  A.  A  has  abandoned  and  exposed  C, 
but  D  has  not,  as  she  was  under  no  legal  obligation  to  take 
charge  of  C. 

(2.)  -  A  sends  B,  her  child  five  weeks  of  age,  packed  up  in  a 
hamper  as  a  parcel,  by  railway,  to  C,  B's  putative  father,  giving 
directions  to  the  clerk  to  be  very  careful  of  the  hamper,  and  send 
it  by  the  next  train.  The  child  reaches  C  safely.  A  has  aban- 
doned and  exposed  B. 


1  R.  V.  White,  1871,  1  C.  C.  R.  311. 

-  R.  V.  Falkingham,  1870,  1  C.  C.  R.  222. 


THE    CRIMINAL    LAW  223 


CHAPTER   XXXI 

OFFENCES  CONCERNING  PAUPERS 

Article  287. 

promoting  marriages. 

^  Every  officer  of  any  parish,  union,  or  place  is  guilty  of  a 
misdemeanour  who  endeavours  to  induce  any  person  to  con- 
tract a  marriage  by  threat  or  promise  respecting  any 
application  to  be  made  or  any  order  to  be  enforced  with 
respect  to  the  maintenance  of  any  bastard  child. 

Article  288. 

desertion  of  paupers. 

-  Every  one  is  guilty  of  a  misdemeanour  and  liable  to  a 
fine  not  exceeding  ten  pounds,  and  in  default  of  payment 
to  imprisonment  for  three  months,  who  being  employed  in 
the  execution  of  a  warrant  duly  issued  under  the  authority 
of  24  and  25  Vict.  c.  76  or  8  and  9  Vict.  c.  117  (relating 
to  the  removal  of  paupers  out  of  England)  wilfully  deserts 
any  person  mentioned  therein  before  he  or  she  is  conveyed 
to  the  place  of  destination. 

'  7  &  8  Vict.  c.  101,  8.  8. 
-  L'G  &  27  Vict.  c.  89,  s.  4. 


224  A    DIGEST    OF 


CHAPTER  XXXII 

*  offences  as  to  lcxatics  and  asylums 

Article  289. 
offences  committed  in  respect  of  lunatics. 

Every  person  is  guilty  of  a  misdemeanour  who 

^  (a.)  except  under  the  provisions  of  this  Act  receives  or 
detains  a  lunatic,  or  alleged  lunatic,  in  an  institution  for 
lunatics,  or  for  payment  takes  charge  of,  receives  to  board 
or  lodge,  or  detains  a  lunatic  or  alleged  lunatic  in  an 
unlicensed  house  ;  or 

-  (b.)  receives  or  detains  two  or  more  lunatics  in  any  house 
not  being  an  institution  for  lunatics  or  a  workhouse,  except 
under  the  provisions  of  this  Act  ;  or 

^  (c.)  being  the  manager  of  any  hospital  or  licensed  house, 
or  any  person  having  charge  of  a  single  patient,  omits  to 
send  to  the  Commissioners  the  prescribed  documents  and 
information  upon  the  admission  of  a  patient,  or  to  make  the 
prescribed  entries,  and  give  the  prescribed  notices  upon  the 
removal,  discharge,  or  death  of  a  patient ;  or 

■*  (d.)  makes  a  wilful  misstatement  of  any  material  fact  in 
any  petition,  statement  of  particulars,  or  reception  order 
under   the    Lunacy  Act  1890  :  or  in  any  medical  or  other 

*  By  53  Vict.  c.  5,  s.  325,  the  secretary  of  the  Commissioners,  the 
clerk  of  the  visitors,  and  the  clerk  of  the  visiting  committee  may  prosecute 
for  offences  imder  this  Act  ;  also  such  proceedings  may  not  he  taken 
except  by  order  of  the  Commissioners,  or  of  visitors  having  jurisdiction  or 
with  the  consent  of  the  Attorney-General.  The  second  part  of  the  section 
seems  to  render  the  decision  in  Anderso7i  v.  Hamlin,  1890,  25  Q.  B.  D. 
221,  inapplicable. 

1  53  Vict.  c.  5,s.  315  (1). 

2  Ibid.  s.  315  (2)  (3). 

3  Ibid.  s.  316. 

•*  Ibid.  s.  317  (1)  (2)  ;  a  prosecution  for  this  offence  must  be  by  order 
of  the  Commissioners  or  by  the  direction  of  the  Attorney-General  or  the 
Solicitor  to  the  Treasury. 


TEE   CRIMINAL    LAW  -225 


certificate,  or  in  any  statement  or  report  of  bodily  or  mental 
condition  under  this  Act ;  or 

^(c.)  in  any  book,  statement  or  return  knowingly  makes 
any  false  entry  as  to  any  matter  as  to  which  he  is,  by  the 
Lunacy  Act  1890,  or  the  rules  under  it,  required  to  make 
any  entry ;  or 

-  (/.)  being  the  manager  of  an  institution  for  lunatics  or 
the  person  having  charge  of  a  single  patient,  omits  to  send 
to  the  coroner  notice  of  the  death  of  a  lunatic  within  the 
prescribed  time ;  or 

3  {g)  obstructs  any  Commissioner  or  Chancery  or  other 
visitor  in  the  exercise  of  the  powers  conferred  by  the  Lunacy 
Act  1890,  or  any  other  Act ;  or 

^  (h.)  being  a  manager,  officer,  nurse,  attendant,  servant,  or 
other  person  employed  in  an  institution  for  lunatics,  or  any 
pei-son  having  charge  of  a  lunatic  whether  by  reason  of 
any  contract,  or  of  any  tie  of  relationship,  or  marriage  or 
otherwise,  ill-treats  or  wilfully  neglects  a  patient. 

^  Every  manager,  officer,  nurse,  attendant,  or  other  person 
employed  in  any  institution  for  lunatics  (including  an  asylum 
for  criminal  lunatics)  or  workhouse,  or  any  person  having 
the  care  or  charge  of  any  single  patient,  or  any  attendant 
of  any  single  patient,  is  guilty  of  a  misdemeanour  and  is 
liable  to  be  imprisoned  with  hard  labour  for  two  years, 
who  carnally  knows,  or  attempts  to  have  carnal  knowledge 
of  any  female  under  care  or  treatment  as  a  lunatic  in  the 
institution,  or  workhouse,  or  as  a  single  patient. 

>  53  Vict.  c.  5,  s.  318. 
■i  Ibid.  8.  319. 
3  Ibid.  8.  321. 
♦  Ibid.  8.  322. 

'•>  Ibid.  8.  324.  No  consent  or  .illeged  consent  of  tlie  female  is  a  defence 
to  an  indictment  for  the  above  offence. 


226  A     DIGEST  OF 


Article  290. 
other  breaches  of  the  lunacy  act. 

Every  person  is  guilty  of  a  misdemeanour  who 

^  (a.)  presents  a  petition  as  to  a  lunatic  after  another  as 
to  the  same  lunatic  has  been  dismissed,  without  stating  the 
facts  with  regard  to  the  previous  petition  and  its  dismissal 
so  far  as  they  are  within  his  knowledge,  and  obtaining  from 
the  Commissioners  in  Lunacy  at  his  own  expense,  and 
presenting  with  the  petition,  a  copy  of  the  reasons  for 
dismissing  the  previous  petition  ;  or 

^(h.)  contravenes  the  provisions  of  section  40  of  the 
Lunacy  Act  1890  as  to  the  employment  of  mechanical  means 
of  restraint ;  or 

^(c.)  being  a  manager  omits  to  send  a  copy  of  a  Com- 
missioner's minute  as  to  a  doubtful  patient,  or  being  a  clerk, 
neglects  to  communicate  the  same  to  the  visitors ;  or 

^  (d.)  for  the  purpose  of  obtaining  a  licence  or  a  renewal 
of  a  licence  supplies  any  untrue  information  to  the  Com- 
missioners or  justices;  or 

^  (c.)  keeps  a  house  wherein  there  are  two  or  more  lunatics, 
or  has  the  care  or  charge  of  the  lunatics  therein  after  the 
lapse  of  two  months  from  the  expiration  or  revocation  of 
the  licence ;  or 

^(/)  being  the  superintendent  of  any  hospital,  receives 
or  detains  any  lunatic  therein  contrary  to  the  provisions  of 
the  Lunacy  Act  1890  or  the  terms  of  the  complete  certificate 
of  registration ;  or 

^  (g.)  being  the  superintendent  of  a  registered  hospital 
knowingly  permits  any  lunatic  to  be  detained  or  lodged  in 
any  building  not  shown  on  the  plans ;  or 

s(A.)  is  the  superintendent  of  a  hospital  where  lunatics 
are  detained  or  kept  after  the  day  appointed  for  closing  it. 

•  53  Vict.  c.  5,  s.  7.                                             -  Ibid.  s.  40. 

3  Ibid.  s.  197.  ■»  Ibid.  s.  214. 

6  Ibid.  s.  222.  6  Ibid.  s.  231. 

^  Ibid.  s.  233,  8  Ibid.  s.  237. 


THE   CBIJIISAL    LAW  227 


CHAPTER  XXXIII 

*  libels  ox  private  persoxs 
Article  291. 
definition  of  libel. 

The  word  "  libel "  means 

(a.)  the  offence  defined  in  this  Article ; 

(h.)  anything  by  the  publication  of  which  the  offence  is 
committed. 

^  Every  one  commits  the  misdemeanour  called  libel  who 
maliciously  publishes  defamatory  matter  of  any  person,  or 
body  of  persons,  definite  and  small  enough  for  its  individual 
members  to  be  recognised  as  such,  in  or  by  means  of  any- 
thing capable  of  being  a  libel  in  the  second  sense  of  the 
word. 

-  The  publication  of  a  libel  on  the  character  of  a  dead 
person  is  not  a  misdemeanour  unless  it  is  intended  to  injure 
or  provoke  living  persons. 

*  See  Note  X. 
'  The  best  modern  statement  on  the  law  of  libel  is  liy  Lord  Blackburn 
in  Capital  and  Counfies  Bank  v.  Henty,  1882,  7  App.  Ca.  741,  at  pp.  769- 
788.  See  also  my  History  of  the  Criminal  Law,  vol.  ii.,pp.  29S-.395  and 
1  Hawk.  P.  C.  542.  As  to  what  can  be  a  "  libel  "  see  Article  292.  As 
to  "publishes,"  see  Article  294  ;  "maliciously,"  see  Article  295. 

-  As  to  libels  on  the  dead,  see  R.  v.  Tojiham,  1791,  4  T.  R.  126  ;  also 
R.  V.  Lahouchtre,  1882,  12  Q.  B.  D.  at  pp.  322-4.  In  February,  1887,  I 
tried  the  case  of  R.  v.  Enxor  at  the  assizes  at  Cardiff.  The  case  was  of 
a  newspajKjr  lil>el  on  a  ]>o1itical  opponent  who  hail  been  dead  for  three 
years.  It  led  to  an  assault  l>y  the  dead  man's  sons  u{)on  the  supposed 
lilx-'ller.  I  directed  an  acipiittal  on  the  ground  that  no  evidence  was 
offered  to  show  that  the  libel  in  any  way  referred  to  any  living  person. 
I  ought  to  have  added,  but  I  did  not  do  so  clearly,  that  tliere  was  no 
evidence  that  the  defendant  wisheil  to  [)r<ivoke  the  sons  of  the  decwised. 
It  waH  not  even  stated  tliat  he  knew  of  tlieir  existence.  I  thought  that 
an  actual  intent  U>  injure  (I  sliould  hfivc  added)  or  to  ])i'ovnkc  or  annoy 
the  wjns  was  csHenlial  to  the  otl'encc,  and  tliat  a  mere  tciidciiiy  to  provoke 
or  constructive  intention  inferred  from  the  fact  that  tlit;  librl  was  cah-u- 
latcl  to  hurt  tin;  feelings  of  imy  surviving  rflalions  of  the  d«Tca«ed  was 
n'lt  enough.       I  have  altered  the  Wfirdiii^  of   this  article  aeconlingly. 


228  A    DIGEST   OF 


Illustrations. 

(1.)  ^  A  religious  society  called  the  S.  Nunnery,  consisting  of 
certain  nuns  and  other  persons,  may  be  lil)elled  tlioii^h  no 
individual  is  specially  referred  to. 

(2.)  "  A  libel  may  be  jiublished  against  "certain  persons 
lately  arrived  from  Portugal  and  living  near  JJroad  Street," 
though  no  particular  person  is  mentioned  or  referred  to. 


Article  292. 

things  capable  of  being  libels. 

^  Any  words  or  signs  conveying  defamatory  matter  marked 
upon  any  substance,  and  anything  which  by  its  own  nature 
conveys  defamatory  matter,  may  be  a  libel  in  the  second 
sense  of  the  word  before  mentioned.  Words  spoken  can  in 
no  case  bo  a  libel,  althuiigli  they  may  convey  defamatory 
matter. 

Illustration. 

A  letter  or  passage  in  a  book  or  newspaper,  words  written  on 
a  wall,  a  picture,  a  gallows  set  up  before  a  man's  door,  or  a 
waxen  "  portrait  model  "  exhibited  as  one  of  a  collection  of 
notorious  malefactors,*  may  be  a  libel. 


Article  293. 

defamatory  matter. 

^  Defamatory  matter  is  matter  which,  either  directly  or  by 
insinuation  or  irony,  tends  to  expose  any  person  to  hatred, 
contempt,  or  ridicule. 

1  R.  V.  Cathercole,  1838,  2  Lew.  237. 

2  H.  V.  Osborne,  1732  ;  2  Kel.  230. 

3  3  Russ.  Cr.  p.  178  ;  1  Hawk.  P.  C.  .542  ;  Folkard'.s  Starkie,  167.  As 
to  cases  in  which  words  spoken  amount  to  a  criminal  offence,  see  Articles 
72,  96,  179. 

*  Mousoii  V.  Twisauds,  Limited,  1894,  1  Q.  B.  671. 
s  Folkard's  Starkie,  171,  172. 


THE    CRIMINAL    LAW  229 


Illustrations. 

The  following  are  instances  of  defamatory  matter : — 

^  A  question  suggesting  that  illegitimate  children  were  born 
and  murdered  in  a  nunnery ; 

^   "A  adds  to  his  other  vices  ingratitude  " ; 

^  "A  will  not  play  the  fool  or  the  hypocrite  "  (meaning  that 
he  would) ; 

■*  "A  has  the  itch,  and  smells  of  brimstone." 

^  An  imputation  that  A  (a  clergyman)  poisoned  foxes  in  a 
hunting  country  and  hung  them  by  the  neck,  and  was  himself 
hung  in  effigy  for  so  doing. 


Article  294. 
publication  defined. 

^  To  publish  a  libel  is  to  deliver  it,  read  it,  or  commimi- 
cate  its  purport  in  any  other  manner,  or  to  exhibit  it  to  the 
person  libelled,  or  any  other  person,  ^  provided  that  if  the 
person  making  the  publication  shows  that  he  did  not  know, 
and  had  no  opportunity  of  knowing,  the  contents  of  the  libel, 
or  that  the  newspaper  or  other  publication  of  which  it  forms 
part  was  likely  to  contain  libellous  matter,  his  act  is  not 
deemed  to  amount  to  a  publication. 

^  A  libel  published  in  the  ordinary  course  of  the  business 
of  any  person  whose  trade  it  is  to  deal  in  articles  of  the  kind 
to  which  the  libel  belongs,  is  deemed  to  be  published,  not 

'  JR.  V.  Gathercoh,  1838,  2  Lew.  C.  C.  at  p.  255. 

2  Cox  V.  Zee,  1869,  L.  R.  4  Ex.  284. 

3  1  Hawk.  P.  C.  54.3. 

*    VillarH  V.  Mousley,  1790,  2  Wils.  4U.S. 

^  li.  V.  Cooper,  1846,  8  Q.  B.  533.  I  tliink  it  miglit,  under  special 
circumstancea,  be  a  libel  to  say  of  a  person  a  tiling  apjniientl}'  (juite 
inofFensive.  Suppose,  for  instance,  a  man  wiote  of  anotlier  "  liis  name  is 
A,"  meaning  that  his  real  name  was  A,  and  tliat  tlie  name  of  B,  by  wliieh 
lie  passe<l,  was  falsely  assume<l,  w(jnld  not  this  be  a  libel  ?  Ijut  cf.  Cajiilal 
ami  Counfiti  Jiaiik  v.  I/tiili/,  1882,  7  App.  Ca.s.  741. 

8  /{.  V.  Jiwrdttt,  182U,  4  B.  &  Aid.  95.  A  liljel  publislied  to  the  person 
lil>elled  is  a  !ni.s<lemeanonr,  because  it  tends  t<j  a  breacli  of  the  peace,  l)ut 
it  is  not  a<lionalde,  as  it  cannf)t  injure  the  iej)utation  of  the  p«is((n 
libelled. 

7  ICmimiiH  V.  Poltit,  1885,  16  g.  15.  D.  ."{."iL 

"  Cases  in  Fjilkard's  Ktarkie,  451-451  ;  and  especially  I{.  v.  Aliuun, 
1770,  5  IJurr.  2086. 


•230  A    DIGEST   OF 


only  by  the  person  who  actually  sells  or  exhibits  it,  but  also 
by  his  master  if  his  master  has  given  him  general  authority 
to  sell  or  exhibit  for  his  master's  profit  articles  of  that 
kind. 

^  Provided  that  whenever,  upon  the  trial  of  any  person  for 
the  publication  of  a  libel,  evidence  has  been  given  which 
establishes  a  presumptive  case  of  publication  against  the 
defendant  by  the  act  of  any  other  person  by  his  authority, 
the  defendant  may  prove  that  such  publication  was  made 
without  his  authority,  consent,  or  knowledge,  and  that  the 
said  publication  did  not  arise  from  want  of  due  care  or 
caution  on  his  part. 

2  If  the  proprietor  of  a  newspaper  or  other  periodical  work 
gives  general  authority  to  an  editor  to  manage  the  paper,  it 
is  a  question  of  fact  whether  the  proprietor  authorised  the 
editor  to  publish  the  libel  which  is  the  subject  of  the  indict- 
ment or  information.  Authorisation  is  not  to  be  presumed 
from  the  mere  fact  that  the  general  control  of  the  paper  was 
left  to  the  editor,  but  may  be  inferred  from  circumstances 
showing  that  the  proprietor  permitted  the  editor  to  publish 
libels,  or  was  indifferent  as  to  whether  libels  were  published 
by  him  or  not. 

Ilhistratio7iii. 

(1.)  ^  A  delivers  to  B  an  open  letter,  of  which  A  is  the  author, 
containing  matter  defamatory  of  C.      A  has  published  a  libel. 

(2.)  ^  A  posts  to  B  a  sealed  letter,  of  which  A  is  the  author, 
and  which  contains  a  libel  on  C.  It  seems  that  the  posting  of 
the  letter  is  in  itself  a  publication  (qucere). 

(.3.)  ^  The  postman  delivers  to  B  the  letter  mentioned  in  the 
last  illustration.  The  postman  has  not  published  the  letter,  but 
A  has. 

(4.)  A  bookseller's  shopman  sells  a  libellous  book  over  the 
counter  in  the  ordinary  course  of  business ;  both  the  shopman 
and  the  bookseller  have  published  the  libel. 


1  6  &  7  Vict.  c.  96,  s.  7.  Probably  the  effect  of  such  proof  would  be  to 
excuse  the  master,  though  the  Act  does  not  say  so.  See  B.  v.  Almon, 
supra,  as  to  the  rule  before  the  statute. 

2  i?.  V.  Nolbrook,  1878,  4  Q.  B.  D.  42. 

3  All  these  Illustrations  are  founded  on  E.  v.  Burdett,  1820,  4  B.  & 
Aid.  95.  (1)  is  assumed  b}-  all  the  judges  ;  (2)  is  doubted  by  Bayley,  J., 
p.  153  ;  (3)  is  given  by  Best,  J.,  p.  126. 


THE   CRIMINAL   LAW  231 


Article  295. 

whex  a  libel  is  malicious. 

^  The  publication  of  a  libel  is  malicious  in  every  case  which 
does  not  fall  within  the  provisions  of  some  one  or  more  of 
the  seven  Articles  next  following. 

Article  296. 

publicatiox  of  the  truth. 

-  The  publication  of  a  libel  is  not  a  misdemeanour  if  the 
defamatory  matter  is  true,  and  if  the  publisher  can  show 
that  it  was  for  the  public  benefit  that  such  matter  should  be 
published. 

Illustration. 

^  A  writes  of  B,  "  Many  years  ago  B  committed  immoral 
acts."  The  imputation  is  true.  This  is  not  a  libel  if  the 
publisher  can  show  that  it  was  for  the  public  benefit  that  it 
should  be  published. 

Article  297. 
publication'  of  matter  honestly  believed  to  be  true. 

*  The  publication  of  a  libel  is  not  a  misdemeanour  if  the 
defamatory  matter  published  is  honestly  believed  to  be  true, 

'  In  Bromarje  v.  Prosser,  1825,  4  B.  &  C.  247,  wliicli  is  a  leading  case 
on  the  subject,  Bayley,  J.,  says,  "Malice  ...  in  its  legal  sen.se  niean.s  a 
wrongful  act  done  intentionally  and  witliout  just  cause  or  excuse."  F'roni 
the  nature  of  the  case  the  puljlication  of  a  liliel  must  be  an  intentional 
act.  'J'iie  next  seven  Articles  sum  up  tiie  did'ercnt  states  of  fact  viiicli 
have  been  held  to  constitute  "  just  cause  or  excuse  "  for  publishing  libels. 
Ill  JJroiiiatjf  V.  I'roMstr  and  many  otlier  cases,  much  is  said  of  malice  in 
law  and  malice  in  fact,  of  privileged  publications,  &c.,  &c.  ;  but  a 
KuHicieiitly  simple  anil  intelligible  result  has  at  last  liccn  i(  aciicd  by  very 
circuitous  roads.      See  Note  X. 

'^  Kflect  of  0  &  7  Vict.  c.  »G,  s.  0. 

3  li.  V.  Newman,  IS.-JS,  1  K.  &  B.  .'i.lH  ;  and  see  D.  &  P.  SS. 

*  See  Folkard'sStarkie,  cli.  xi.  2S.S  .S2J».  I  have  gone  carefully  through 
these  forty-six  pages  twice  or  more,  and  I  cannot  sec  (hat  they  contain 
anything  l>eyond  tliis  principle  and  rather  obvious  illusliatifiiiM  of  it 
<;xpreHHed  in  a  very  oomplicatcd  way.  The  leading  case  on  the  subject  is 
J/arrixoH  v.  Ihuth,  iH.jrj,  .'.  K.  &  B.  ":{44. 


232  A    DIGEST   OF 


by  the  person  publishing  it,  and  if  the  relation  between  the 
parties  by  and  to  whom  the  publication  is  made  is  such  that 
the  person  publishing  is  under  any  legal,  moral,  or  social 
duty  to  publish  such  matter  to  the  person  to  whom  the 
publication  is  made,  or  has  a  legitimate  personal  interest 
in  so  publishing  it,  provided  that  the  publication  does  not 
exceed  either  in  extent  or  in  manner  what  is  reasonably 
sufficient  for  the  occasion,^  and  provided  that  the  person  who 
publishes  is  not  in  i'act  actuated  in  so  doing  by  any  indirect 
motive. 

When  the  existence  of  the  relation  establishing  the  duty 
has  been  proved,  the  burden  of  proving  that  the  statement 
was  not  honestly  believed  to  be  true,  and  that  the  defendant 
was  in  fact  actuated  by  some  indirect  motive  (both  or  either), 
is  upon  the  prosecutor. 

Illustrations. 

(1.)  "^  A  being  asked  the  character  of  B,  who  had  been  in  his 
service,  by  C,  who  is  about  to  engage  B  as  a  servant,  writes  of 
B,  in  a  letter  to  C,  the  words  "  B  is  a  drunkard  and  a  thief." 
If  A  honestly  and  on  reasonable  grounds  believes  that  B  is  a 
drunkard  and  a  thief,  though  in  fact  he  is  neither,  this  is  not  a 
libel. 

If  A  published  this  letter  in  a  newspaper  it  would  be  a  libel. 

As  soon  as  the  circumstances  under  which  the  letter  was 
written  are  proved  or  appear,  the  burden  of  proving  that  A  did 
not  honestly  and  on  reasonable  grounds  believe  B  to  be  a 
drunkard  and  a  thief  is  upon  B  in  a  prosecution  or  action  by  B. 

(2.)  ^  A,  the  private  secretary  of  a  general,  being  directed  by 
the  general  to  give  an  inspecting  officer  information  as  to  the 
discipline  of  a  body  of  troops,  writes  a  letter  to  the  inspector,  in 
which  he  says  that  B,  who  had  formerly  commanded  the  troops, 
attempted  to  excite  a  mutiny  when  he  was  removed  from  his 
command.  This  is  not  a  libel,  though  false,  if  A  honestly  be- 
lieved it  to  be  true,  and  if  it  was  relevant  to  the  subject  on  which 
A  was  directed  to  report. 

(3.)  *  A  writes  a  letter  containing  matter  defamatory  of  B  to 

1  Clark  V.  Molyneux,  1877,  3  Q.  B.  D.  237. 

^  Many  cases  as  to  giving  characters  to  servants  are  collected  and 
abstracted  in  Folkard's  edition  of  Starkie,  pp.  286-292. 

^  Beat  son  v.  Skene,  1860,  5  H.  &  N.  838.  This  was  an  action  for 
verbal  slander,  but  the  principle  is  the  same 

*  Todd  V.  Haiokim,  1837,  8  C.  &  P.  88 


THE    CRIMINAL    LAW  233 

C,  A's  mother-in-law,  who  is  about  to  marry  B.  If  A  in  good 
faith  believes  the  imputations  to  be  true,  this  is  not  a  libel 
although  the  imputations  are  false. 

(4.)  ^  The  mate  of  a  ship  writes  a  letter  to  A  accusing  the 
captain,  B,  of  drunkenness  and  misconduct.  A  (who  has  nothing 
to  do  with  the  matter)  forwards  the  letter  to  the  owner  of  the 
ship  believing  the  accusation  to  be  true  and  thinking  himself 
morally  bound  to  report  it.  The  accusation  was  in  fact  false. 
It  is  uncertain  whether  A  has  or  has  not  libelled  B. 

(5.)  A  complains  to  the  Privy  Council  of  the  conduct  of  a 
public  officer  whom  the  Privy  Council  had  power  to  remove.  If 
the  statement  was  made  with  express  malice  it  is  libellous.- 


Article  298. 

fair  criticism, 

^  The  publication  of  a  libel  is  not  a  misdemeanour  if  the 
defamatory  matter  consist  of  comments  upon  persons  who 
submit  themselves,  or  upon  things  submitted  by  their 
authors  or  owners,  to  public  criticism,  provided  that  such 
comments  are  fair. 

*  A  fair  comment  is  a  comment  which  is  either  true,  or 
which,  if  false,  expresses  the  real  opinion  of  its  author  (as  to 
the  existence  of  matter  of  fact  or  otherwise),  such  opinion 
having  been  formed  with  a  reasonable  degree  of  care  and  on 
reasonable  grounds. 

^  Every  pcnson  who  takes  a  public  part  in  })ublic  affairs 
submits  his  conduct  therein  to  criticism. 

'"  Every  person  who  publishes  any  book  or  other  literary 
production,  or  any  work  of  art,  or  any  advertisement  of 
goods,  submits  that  book,  or  literary  production,  or  work 
of  art,  or  advertisement  to  public  criticism. 

'  CoxhttuL  V.  Rirhanls,  1H46,  2  C.  ]{.  r)GJ).  Tlio  judges  in  this  case 
were  equally  divided  :  Tiiidal,  CJ.,  and  Kile,  .).,  lliought  the  letter  was 
not  a  libel  ;  Coltinan,  .J.,  and  (y'resMwell,  .J.,  tiiought  it  was. 

-   Procter  V.    Wf-hnlcr,    188.'),  10  g.  H.   1).   11>2. 

^  Folkard's  SUrkie,  eh.  x.  pp.  'J.'j4   282. 

*  HunOr  V.  Sharpt,  18(50,  4  F.  &  V.  983  ;  Mtrivak  v.  CarKou,  1S87,  20 
Q.  Ji.  \).  r,:>  ;  Folkard's  SUrkie,  278. 

'•'  IlluHtration  (i ). 

«  Illu«trationH  (2},  (3),  and  (4). 


234  A    DIGEHT   OF 


^  Every  person  who  takes  part  in  any  public  dramatic  per- 
formance, or  other  public  entertainment,  submits  himself  to 
public  criticism  to  the  extent  to  which  ho  takes  part  in  it. 

Illustrations. 

(1.)  -  A,  by  direction  of  the  Lords  of  the  Admiralty,  published 
to  the  world  at  large  an  official  report  made  to  the  Lords  of  the 
Admiralty  by  B,  which  report  contained  matter  defaming  the 
character  of  C  as  a  naval  architect.  C,  having  su])mitt(Hl  to  the 
Lords  of  the  Admiralty  proposals  and  plans  for  converting 
wooden  ships  of  war  into  armoured  ships  of  war,  and  the  official 
report  being  part  of  a  collection  of  papers  intended  to  give  the 
public  information  as  to  the  construction  of  ships  of  war,  and 
the  publication  being  made  in  good  faith,  A  has  not  libelled  C. 

(2.)  ^  A  publishes  a  caricature  of  B,  an  author,  intending  to 
convey  the  impression  that  his  books  are  dull  and  ridiculous. 
A  has  not  libelled  B. 

(3.)  *  B  exhibits  a  picture  at  the  annual  exhibition  of  the 
Royal  Academy.  A  writes  a  criticism  on  the  pictures  so  exhi- 
bited, and  calls  B's  picture  "  a  mere  daub."  If  this  expresses 
A's  honest  opinion,  A  has  not  libelled  B. 

(4.)  ^  B  publishes  an  advertisement  about  a  bag  sold  by  him 
and  called  "  the  Bag  of  Bags."  A  publishes  a  criticism  on  the 
advertisement,  saying,  "  The  title  is  very  silly,  very  .slangy,  and 
very  vulgar."  This  may  be  a  libel  if  it  is  meant  to  convey  an 
imputation  of  B's  way  of  managing  his  bu.siness,  but  is  not  a 
libel  if  it  is  only  an  expression  of  A's  honest  opinion  as  to  the 
title  given  by  B  to  his  bag. 


J  Dihdin  v.  BoMoch,  1823,  1  Esp.  28. 

-  Jlenwood  v.  Harrison,  1872,  L.  R.  7  C  P.  006  ;  but  see  too  Merii^ah 
v.  Carson,  1887,  20  Q.  B.  D.  275,  where  Bowen,  L.J.,  disagrees  witli  the 
ratio  decidendi  in  the  earlier  case,  so  far  as  it  turns  on  tlie  existence  of 
privilege.  The  value  of  the  case  as  an  illustration  does  not,  however, 
seem  to  l)e  affected. 

3  Carr  v.  Hood,  1808,  1  Camp.  354  ;  Folkard's  Starkie,  273  ;  and  see 
Tahart  v.  Tipper,  1808,  1  Camp.  350.  Carr  v.  Hood  is  a  strong  case, 
because  the  caricature  ridiculed  not  only  the  book  })ut  the  author.  It  is 
one  thing  to  say,  "This  liook  is  absiuxl,"  another  to  say,  "  You  are  an 
absurd  person  because  you  have  written  this  absurd  liook."  This  decision 
would  cover  (within  limits)  connnon  political  caricatures. 

^   Thompson  v.  Shakell,  1828,  1  M.  &  M.  187  ;  Folkard's  Starkie,  276. 

&  Jenner  v.  A'BecJcetf,  1871,  L.  R.  7  Q.  B.  11  ;  Folkard's  Starkie,  277. 


THE   CRIMINAL   LA  W  235 

Article  299. 
parliamentary  proceedings  and  fair  comments  thereon. 

^  It  is  not  a  misdemeanour  to  publish  such  of  the  reports, 
papers,  votes,  or  proceedings  of  either  House  of  Parliament 
as  such  House  of  Parliament  may  deem  fit  or  necessary  to 
be  published ;  or, 

-  any  extract  from  or  abstract  of  such  report,  paper, 
votes,  or  proceedings,  if  it  is  shown  by  the  party  accused 
that  such  extract  or  abstract  was  published  hoiiA  fide  and 
without  ^malice ;  or 

■*  a  fair  report  of  any  debate  in  either  House  of  Parliament, 
though  any  such  publication  may  contain  matter  dcfomatory 
of  the  character  of  individuals ;  ^  [submitted]  provided  that 
the  publisher  is  not  actuated  in  making  the  publication  by 
any  indirect  motive. 

Article  300. 
reports  in  newspapers  of  proceedings  of  trials  and 

public  MEETINGS. 
^  A  fair  and  accurate  report  in  any  newspaper  of  proceedings 

'  3  &  4  Vict.  c.  9,  s.  1.  The  Act  contains  directions  as  to  proof  of  the 
reports,  &c.  ;  see  also  Stockdale  v.  Hansard,  1839,  9  A.  &  E.  I.  The 
existence  of  a  narrower  privilege  than  that  conferred  by  the  statute,  viz., 
the  privilege  of  publishing  libellou.s  papers  to  members  of  Parliament  for 
their  use,  was  never  disputed  ;  see  Lake  v.  Kinq,  1(5(57,  1  Wms.  Saundeis, 
132. 

=^  3  &  4  Vict.  c.  9,  s.  3. 

'  The  word  "malice"  must  have  its  popular  sense.  In  this  connection, 
however,  it  has  almost  no  meaning.  A  publislies  an  abstract  of  a  parlia- 
mentary paper,  wiiich  destroys  the  character  of  his  deadly  enemy  13.  He 
rejoices  in  tlie  prospect  of  ruining  li's  ciiaracter,  and  so  publishes  both 
hond  fide  and  witli  malice.  It  is  absurd  to  say  he  is  indictable,  yet  if  he 
is  not,  what  is  the  sense  of  the  word  "  malice"  ?  It  seldom  has  any  mean- 
ing except  a  mi8lca<ling  one.  It  refers  not  to  intention,  but  to  motive, 
and  in  almost  all  legal  iiujuiries  intention,  as  distinguished  fiom  motive,  is 
the  imp^jrtant  matter.  Another  objection  to  it  is  that  its  popular  mean- 
ing is  not  barely  ill-will  but  an  ill-will  which  it  is  immoral  to  feel.  No  one 
would  deHcril>e  legitimate  indignation  as  "malice."  Tlie  word  is  entirely 
avoided  in  the  Indian  IV-nal  (Jode. 

«    H'axw  V.    Waller,  1«(5S,  L.  R.  4  Q.  H.  73. 

''  Analogy  (»f  SttvtnJt  v.  Sumjmon,  1H7U,  >i  Kx.   D.  .'"i.'J. 

«  ni  &  r/i  Vict.  c.  «4,  H.  3. 


236  A    DIGEST   OF 


publicly  heard  before  any  Court  exercising  judicial  authority, 
if  published  contemporaneously  with  such  proceedings,  is 
privileged,  provided  that  nothing  in  this  Article  authorises  the 
publication  of  any  blasphemous  or  indecent  matter. 

^  A  fair  and  accurate  report  published  in  any  newspaper 
of  the  proceedings  of  a  public  meeting,  or  (except  where 
neither  the  public  nor  any  newspaper  reporter  is  ad- 
mitted) of  any  meeting  of  a  vestry,  town  council,  school 
board,  board  of  guardians,  board  or  local  authority  formed  or 
constituted  under  the  provisions  of  any  Act  of  Parliament, 
or  of  any  committee  appointed  by  any  of  the  above-mentioned 
bodies,  or  of  any  meeting  of  any  commissioners  authorised  to 
act  by  letters  patent.  Act  of  Parliament,  warrant  under  the 
Royal  Sign  Manual,  or  other  lawful  warrant  or  authority, 
select  committees  of  either  House  of  Parliament,  justices  of 
the  peace  in  quarter  sessions  assembled  for  administrative 
or  deliberative  purposes,  and  the  publication  at  the  request 
of  any  Government  office  or  department,  officer  of  state, 
commissioner  of  police,  or  chief  constable  of  any  notice  or 
report  issued  by  them  for  the  information  of  the  public,  is 
privileged,  unless  it  is  proved  that  such  report  or  publication 
was  published  or  made  maliciously;  provided  that  nothing  in 
this  Article  authorises  the  publication  of  any  blasphemous  or 
indecent  matter : 

provided  also  that  the  protection  intended  to  be  afforded 
by  this  Article  is  not  available  as  a  defence  in  any  proceedings 
if  it  is  proved  that  the  defendant  has  been  requested  to 
insert  in  the  newspaper  in  w^hich  the  report  or  other  publica- 
tion complained  of  appeared  a  reasonable  letter  or  statement 
by  way  of  contradiction  or  explanation  of  such  report  or  other 
publication,  and  has  refused  or  neglected  to  insert  the 
same  : 

provided  further  that  nothing  in  this  Article  contained  is 
deemed  or  construed  to  limit  or  abridge  any  privilege  which 
existed  at  the  time  of  the  passing  of  the  Newspaper  Libel 
Act,  1888,  or  to  protect  the  publication  of  any  matter  not  of 

1  51  &  52  Vict.  c.  64,  s.  4. 


THE    CRIMIXAL    LAW  237 

public  concern,  the  publication  of  which  is  not  for  the  public 
benefit. 

"  Public  meeting  "  means  any  meeting  bond  fide  and  law- 
fully held  for  a  lawful  purpose,  and  for  the  furtherance  or 
discussion  of  any  matter  of  public  concern,  whether  the 
admission  thereto  be  general  or  restricted. 

^  No  criminal  prosecution  may  be  commenced  against  any 
proprietor,  publisher,  editor  or  any  person  responsible  for  the 
publication  of  a  newspaper  for  any  libel  published  therein 
without  the  order  of  a  Judge  at  Chambers. 


Article  301. 

publication  in  a  court  of  justice. 

It  is  not  a  misdemeanour  for  a  judge,  counsel,  witness  or 
party  to  publish  anything  whatever  in  a  judicial  proceeding 
before  a  Court  of  competent  jurisdiction,  or  in  the  discharge 
of  any  military  duty,  even  if  the  person  publishing  knows 
the  matter  published  to  be  flxlse,  and  publishes  it  in  order  to 
injure  the  person  to  whom  it  relates. 

Illustrations. 

(l.)-A,  before  justices  of  the  peace,  exhibits  articles  of  the 
peace  against  B,  containing  false  and  scandalous  charges  against 
B,  in  order  to  cause  B  to  he  bound  over  to  good  behaviour. 
This  is  not  a  libel. 

(2.)  ^  A,  in  an  action  between  himself  and  B,  falsely  and  mali- 
ciously swears  an  affidavit  charging  C  with  fraud.  The  affidavit 
is  not  a  libel. 

(.3.)  *  A,  a  military  witness  before  a  military  court  of  inquiry 
as  to  the  conduct  of  B,  makes  in  reference  to  the  subject  of  that 


'  .^)  1  &  52  Vict.  c.  64,  8.  8. 

-'  Cntltr  V.  Dixon,  !.')«.''),  Co.  Pt.  4,  fo.   140. 

'  TliiH  Ih  Htatoil  iiioHt  Htrongly  ami  explicitly  in  MuiiHter  v.  Lamh,  1883, 
11  Q.  Ji.  1).  ')8H.  J/dulerMon  v.  /{roomhta'/,^\H->'J,  4  H.  &,  N.  r>(i(>,  r)76  ; 
see,  too,  JJfiirkiiiM  v.  Lord  /{uhhi/,  IHT.S,  L.  R.  S  (}.  IJ.  2.').'),  ami  autliniiticH 
cite<l  there.  (Joinpare  .SV^i/iia;;  v.  Xi thirr/i/f,  1S7<),  I  ('.  I*.  I  >.  .'>4h,  fm- an 
illuMtnitioii  <»f  the  Haiiie  |iriii<'ip!e  an  reganlH  HJaiuler. 

*   Dawk'niH  V.  Lord  lloblnj,  lH7r),  L.  K.  7  H.  L.  741. 


238  A    DIGEST   OF 


inquiry  certain  written  statements  affecting  B,  which  are  false  to 
A's  knowledge,  and  are  intended  to  injure  B.  This  is  not  a 
libel. 

(4.)  ^  A  being  the  military  superior  of  B,  and  being  as  such 
under  a  military  duty  to  make  a  report  on  B's  conduct  to  C, 
their  common  superior,  makes  a  report  which  he  knows  to  be 
false  in  order  to  injure  B.      The  report  is  not  a  libel. 


Article  302. 
fair  reports  of  proceedings  of  courts. 

-  The  publication  of  a  fair  report  of  the  proceedings  of  a 
Court  of  Justice  is  not  a  libel  merely  because  it  defames  the 
character  of  any  private  person ;  but  such  a  publication  may 
be  an  offence  under  Articles  96,  103,  179,  or  191. 

A  report  is  said  to  be  fair  when  it  is  substantially  accu- 
rate, and  when  it  is  either  complete  or  condensed  in  such  a 
manner  as  to  give  a  just  impression  of  what  took  place,  but 
this  Article  does  not  extend  to  connnents  made  by  the 
reporter,  or  to  reports  of  observations  made  by  persons  not 
entitled  to  take  part  in  the  proceedings. 

Reports  of  ex  imrtc  proceedings  are  within  this  Article  if 
they  areof  a  judicial  nature,  and  proceedings  before  a  magis- 
trate under  11  &  12  Vict.  c.  42,  held  with  open  doors,  and 
with  a  view  to  the  committal  for  trial  of  a  suspected  person, 
are  judicial. 

^  Provided  in  all  the  cases  aforesaid  that  the  publisher  is  not 
actuated  in  making  the  publication  b}^  any  indirect  motive. 

Illustrations. 

(1.)  ■*  A  publishes  in  a  newspaper  a  fair  report  of  the  exami- 
nation of  a  debtor  before  the  registrar  of  a  Bankruptcy  Court. 


1  Daiokins  v.  Lord  Paulet,  1869,  L.  R.  5  Q.  B.  94.  Dissentiente 
Cockburn,  C.J.  I  should  doubt  whether  this  law  would  be  extended 
beyond  the  case  of  military  duty. 

2  Curry  v.  Walter,  1796,  1  B.  &  P.  525  ;  Hoare  v.  Silverloch,  1850, 
9  C.  B.  20  ;  Lewis  v.  Levy,  1858,  E.  B.  &  E.  553.  Usill  v.  Hales,  1878, 
3  C.  P.  D.  319. 

3  Stevem  v.  Samp-son,  1879,  5  Ex.  D.  53. 

4  Byalls  V.  Leader,  1866    L.  R.  1  Ex.  296,  300. 


THE   CRIMINAL   LAW  239 

The  examination  contains  irrelevant  statements  defamint:;  B 
who  is  a  stranger  to  the  proceedings.      This  is  not  a  libel  on  B. 

(2.)  ^  A  having  been  con^-icted  of  publishing  a  blasphemous 
libel,  B  publishes  the  trial,  the  blasphemous  matter  being 
given  in  full.      B  publishes  a  blasphemous  libel. 

(3.)  -  A  publishes  a  I'eport  of  proceedings  for  perjury  against 
B,  and  omits  certain  parts  of  the  cross-examination  of  the 
witnesses.  This  raises  a  question  for  the  jury  whether  the 
efiect  of  the  omission  is  to  make  the  report  partial  and  inac- 
curate. 

(4.)  -^  A,  in  the  last  illustration,  begins  his  report  with  an 
account  of  the  proceedings  out  of  which  the  charge  of  perjury 
against  B  arose,  and  observes,  "  Evidence  was  given  by  C  and 
D  which  entirely  negatived  B's  story."  This  statement  is  not 
within  the  Article. 

(5.)  *  A  publishes  in  a  newspaper  an  account  of  proceedings 
before  a  magistrate  against  B.  The  report  contains  a  statement 
by  the  magistrate's  clerk  that  B's  alleged  conduct  was  exceed- 
ingly improper  under  any  circumstances.  This  observation  is 
not  Avithin  this  Article. 

(6.)  ^  A  publishes  a  fair  report  in  a  newspaper  of  a  proceeding 
against  B  for  perjury  at  a  police  court,  which  proceeding  ended 
in  the  dismissal  of  the  charge  against  B.  This  publication  is 
not  a  libel. 

(7.)  ^  A  publishes  in  a  newspaper  a  fair  report  of  statements 
of  a  defamatory  kind,  made  before  a  magistrate  extra-judicially, 
with  a  %'iew  to  asking  his  advice.  This  publication  may  be  a 
libel,  as  there  is  no  judicial  proceeding. 


Article  303. 

punishment  f()i{  libel. 

^  Every  one  is  liable  to  three  years  imprisonment  with  hard 
labour  who 

(a.)  publishes,  or  threatens  to  publish,  any  libel ;  or 

(b.)  directly  or  indirectly  propo.ses  to  abstain  from,  or  offers 

'  /{.  V.  CarliA/e,  ]H\'.),  'A  IJ.  &  A.  167. 

•i  Lewis  V.  Lenj,  l«r>H,  K.  H.  k  K.  ."iSl. 

3  UwiH  V.  Lfiy,  XHM,  K.  li.  &  K.  ry'M). 

*  lUjfficU  V.  Uujhtey,  18;{7,  a  JJiiig.  N.  C.  !>(i(l,  !)(il. 

•'■  Lf.win    V.    Lfi-y,     \HM,    K.    J{.    &    K.    ^uM  ;    hoo,   on   the    oilier     liand, 
l)uncan  v.   ThwaittM,  \H24,  'A  \i.  k  C.  r,rt(i. 

«  Afrf/rff/or  V.  ThwailiH,  1H2J,  ."{  M.  i^  C.  '_'». 

^  6  &  7  Vict.  c.  90,  H.  .'{. 


240  'A    DIGEST   OF 


to  prevent  the  printing  or  publishing  of  any  matter  or  thing 
touching  any  other  person, 

with  intent 

(i.)  to  extort  any  money,  or  security  for  money,  or  any 
vahiable  thing  from  such  or  any  other  person ;  or 

(ii.)  to  induce  any  person  to  confer  or  procure  for  any 
person  any  appointment  or  office  of  })rofit  or  trust. 

^  Every  one  is  liable  to  two  years  imprisonment,  and  to 
pay  such  fine  as  the  Court  directs,  who  maliciously  publishes 
any  defamatory  libel  knowing  it  to  be  false, 

2  or  [if  he  does  not  know  it  to  be  false]  to  imprisonment 
for  one  year,  and  to  pay  such  a  fine  as  the  Court  may 
direct. 

1  6  &  7  Vict.  c.  96,  s.  4. 

2  Ibid.  s.  5.  The  words  bracketed  are  not  in  the  Act,  but  are  required 
to  complete  the  sense. 


THE    CRIMINAL    LAW 


241 


PART   VI 


1  OFFENCES  AGAINST  RIGHTS  OF  PROPERTY  AND 
RIGHTS  ARISING  OUT  OF  CONTRACTS. 


CHAP.  XXXrV.— Property— Pos- 
session —  Asportation — Bail- 
ment. 

CHAP.  XXXV. — Things  capable 
OR  not  of  being  Stolen. 

CHAP.  XXXVI. —TheitinGeneral 

CHAP.  XXXVII. — Embezzlement 
BY  Clerks  and  Servants. 

CHAP.  XXXVIII.— Robbery  and 
Extortion  by  Threats. 

CHAP.  XXXIX.    —    BURGL.VRY, 

Housebreaking,  etc. 

chap.  xl. — pcnish.ments  for 
ste.iling  particular  things 
and  receiving  goods  unlaw- 
fully obtained. 

CHAP.  XLI. — Obtaining  Property 
BY  False  Pretences  and  other 
Crimin.vl  Frauds,  and  Deal- 
ings with  Property. 


in 


of 


CHAP.  XLII. — Frauds  by  Agents, 
Trustees,  and  Officers  of 
Public  Companies — False  Ac- 
counting. 

CHAP.  XLIII.— Receiving. 

CHAP.       XLIV.  —  Forgery 

G  ENERAL. 

CHAP.     XLV.  —  Punlshment 
Particular  Forgeries. 

CHAP.  XLVI.— Personation. 

CHAP.  XLVII. — Offences  relat- 
ing TO  the  Coin. 

CHAP.  XLVIII.— Malicious  In- 
juries TO  Property. 

CHAP.  XLIX. — Offences  relat- 
ing to  Game,  Wild  Animals, 
AND  Fish. 

CHAP.  L. — Offences  connected 
with  Trade  and  Breach 
of  c0ntr.\ct. 


1  CHAPTER  XXXIV 

property— possession— asportatiox—bailm  ext. 
Article  304. 

OFFENCES   AGAINST   RIGHTS    OF    I'ROI'ERrV    AND    RKillTS 
ARISIX(;    OUT   OF   CONTRACTS. 

The  violation  of  rights  (jf  property,  and  rights  arising  from 
contracts,  i.s  a  crime  in  the  cases  specified  in  this  part. 

•  3  HiHt.  Cr.  Law,  cli.  x.\viii.    I'JI      17(>. 
'   TliJH  anrl  the  following  cliaj)ter  hiivo,    I   feur,  a  HonuiwhaL   almtia<!t 
ap|K;arance,   l»ut  it   \n  iiiipoMHihlu  to    iiiiilerHtaiid    the    pniviHioiis    <if    the 
Larecny  Act  without  a  knowledge  of  (lie  drM.trineH  whicli  it  pieHUppoMeM 
that  iH  to  8.iy,  the  doctrine  um  to  tiie  delinition  of  tlieft,  and  uh  to  thingH 

R 


•2V2  A     DiaEST    OF 


Such  violation  may  be  : 

(1.)  By  taking  away  property  from  the  owner  without  his 
consent 

(fl.)  by  violence  to  his  person  or  habitation ; 
(5.)  without  such  violence. 
(2.)  By   persuading  the    owner   by  fraud    to   transfer  his 
rights  of  property. 

(3.)  By  the  misappropriation  of  property  intrusted  by  the 
owner  to  the  offender. 

(4.)  By  acts  calculated  to  defraud,  whether  they  actually 
defraud  or  not ;  that  is  to  say — 
{a.)  forgery  ; 
{h)  personation ; 

(c.)  coining  and  uttering  bad  money. 
(5.)  By  wilful  and  malicious  mischief  done  to  property. 
(6.)  B}^  breaches  of  certain  kinds  of  contract,  and  inter- 
ference in  certain  cases  with  freedom  of  trade. 


Article  305. 

property  in  m0va15le  things. 

^  A  person  who  has  a  right  as  against  the  world  at  large  to 
do  with  or  to  any  movable  thing  anything  which  the  law  does 
not  specifically  forbid  him  to  do  with  or  to  it,  and  the  right 
to  prevent  all  other  persons  from  doing  therewith  or  thereto 
anything  whatever  which  they  are  not  specifically  authorised 
to  do,  either  by  law  or  by  his  consent,  is  said  to  be  the 
general  owner  of  that  thing,  and  that  thing  is  said  to  be 
his  property,  although  he  may  have  limited  the  above-men- 
tioned rights  respecting  it  as  regards  particular  persons  by 
contract. 

capable  of  being  stolen.  The  definition  of  theft  turns  on  tlie  floctrine  of 
possession  (see  Note  XI.),  and  this  is  unintelligible  except  in  relation  to 
the  doctrine  of  property. 

'  2  Austin,  Jurisprudence,  876,  965. 


THE   CRIMINAL    LAW  243 


1  Article  306. 
possession. 

A  movable  thing  is  said  to  be  in  the  jDossession  of  a 
person  when  he  is  so  situated  with  respect  to  it  that  he  has 
the  power  to  deal  with  it  as  owner  to  the  exclusion  of  all 
other  persons,  and  when  the  circumstances  are  such  that  he 
may  be  presumed  to  intend  to  do  so  in  case  of  need. 

A  movable  thing  is  in  the  possession  of  the  husband  of 
any  woman,  or  the  master  of  any  servant,  who  has  the  custody 
of  it  for  him,  and  from  whom  he  can  take  it  at  pleasure.  The 
word  "  servant "  here  includes  any  person  acting  as  a  servant 
for  any  particular  purpose  or  occasion. 

The  word  "  custody  "  means  such  a  relation  towards  the 
thing  as  would  constitute  possession  if  the  person  having 
custody  had  it  on  his  own  account. 

If  a  servant  receives  anything  for  his  master  from  a  third 
person,  not  being  a  fellow-servant,  he  has  the  possession  as 
distinguished  from  the  custody  of  it,  until  he  has  put  it  into 
his  master's  possession,  by  putting  it  into  a  place  or  thing 
belonging  to  his  master,  or  by  some  other  act  of  the  same 
sort,  whether  the  servant  himself  has  or  has  not  the  custody 
of  that  place  or  thing. 

If  a  servant  receives  anything  belonging  to  his  master 
from  a  fellow-servant  who  has  received  it  from  their  conmion 
master,  such  thing  continues  to  bo  in  the  possession  of  the 
master,  unless  the  servaiiL  w  ho  dcliveicd  it  delivered  it  with 
the  intention  to  pass  the  jjropert}'  therein  to  the  servant  to 
whom  it  is  delivered,  having  autlioriLy  to  do  so  from  the 
mast^-r. 

If  a  servant  receives  anything  belonging  to  his  master 
Iroiii  a  fellow-servant  who  has  received  it  on  the  master's 
account,  antl  has  done  ik;  act  t(j  put  it  into  the  master's 
possession,  it  is  in  the  poss(;ssion  of  the  servant  who  so 
njceives  it,  and  not  in  his  custody  merely. 

'  See  Note  XI. 

K     2 


24 i  A    DIGEST   OF 


Illustrations. 

(1.)  '  A,  the  master  of  a  house,  gives  a  diiiner  party;  the  plate 
and  other  things  on  the  table  are  in  his  possession,  though  from 
time  to  time  they  are  in  the  custody  of  his  guests  or  servants. 

(2.)  -  A  assigns  the  goods  in  his  house  to  trustees  for  the 
benefit  of  his  creditors.  The  trustees  leave  him  undisturbed,  and 
do  not  in  any  way  interfere  with  the  goods.  A  and  not  the 
trustees  is  in  the  possession  of  the  goods. 

(3.)  -^  A  produces  a  receipt  stamp,  and  gets  B  to  write  a  re- 
ceipt on  it  in  A's  presence  as  for  money  paid  by  A  to  B.  The 
stamp  is  in  A's  not  B's  possession. 

(4.)  ^  A  buys  a  bureau  from  B  at  a  sale  with  money  in  a 
secret  drawer,  of  the  existence  of  which  neither  A  nor  B  is  aware. 
The  money  is  not  in  B's  possession  (though  the  bureau  which 
contains  it  is),  because  B  cannot  be  presumed  to  intend  to  act  as 
the  owner  of  it  when  he  discovers  it. 

(5.)  ^  A  is  clerk  to  B,  a  banker,  money  is  paid  to  A  on  B's 
account,  A  keeps  it  for  a  short  time,  and  then  puts  it  into  the 
till.  The  money  is  in  A's  possession  till  it  is  put  into  the  till, 
when  it  passes  into  B's  possession,  though  A  may  have  the 
custody  of  it. 

(6.)  ^  B  leaves  a  watch  with  its  maker  to  be  regulated.  A 
writes  to  the  maker  to  send  the  watch  to  B  at  a  certain  post- 
office.  A  then  goes  to  the  post-office,  and,  pretending  to  be  B, 
gets  the  watch.  As  soon  as  the  watch  reaches  the  post-office 
addressed  to  B,  it  is  in  B's  possession,  as  the  postmaster,  as 
regards  the  letter  and  watch,  is  the  servant  of  the  owner. 

(7.)  ^  B  being  prevented  by  a  crowd  from  getting  near  the  pay- 
place  at  a  railway  station,  hands  a  sovereign  to  A,  who  is  close 
to  it,  to  pay  for  her  ticket,  and  give  her  the  change.  The  sove- 
reign is  in  B's  possession,  but  in  A's  custody. 

(8.)  ^  B  sends  his  servant  A  with  a  cart  of  B's  to  fetch  coals 
for  B  from  C.     A  receives  the  coals  from  C,  carries  them  in 


1  Founded  on  1  Hale,  P.  C.  506. 

2  R.  v.  Pratt,  1854,  D.  &  P.  360. 

3  E.  v.  John  Smith,  1852,  2  Den.  449. 

*  Cartwright  v.  Green,  1803,  8  Ves.  405  ;  Merry  v.  Green,  1841, 
7  M.  &  W.  623. 

^  Bazeley's  Case,  1799,  2  Leach,  835.  This  case  led  to  the  first  Act 
against  embezzlement  bj-  clerks  and  servants.  No  opinion  was  publicly 
delivered  in  it,  but  the  judges  seem  to  have  considered  that  the  act  was 
not  felony.      Several  similar  cases  are  quoted  in  the  argument. 

^  /?.  V.  Kay,  1857,  D.  &  B.  231.  See  Bramwell,  B.'s,  remarks  on  this 
case  in  li.  v.  Middleton,  1873,  2  C.  C.  R.,  at  p.  58, 

1  R.  v.  G.  Thompson,  1862,  L.  &  C.  225. 

8  R.  V.  Reed,  1853,  D.  &  P.  168,  257, 


THE   CRIMIXAL   LAW  245 

sacks  on  his  back  to  the  cart,  puts  them  into  the  cart,  and  drives 
it  back  to  B.  The  cart  is  throughout  in  B's  possession,  but  in 
A's  custody.  The  coals  are  in  A's  possession  whilst  he  is  carry- 
ing them  on  his  back  to  the  cart,  but  as  soon  as  they  are  de- 
posited in  the  cart  they  are  in  the  possession  of  B,  though  both 
coals  and  cart  continue  to  be  in  the  custody  of  A. 

(9.)  ^  A,  B's  servant,  obtains  by  false  pretences  B's  money 
from  C,  another  of  B's  servants.  The  money  after  such  obtain- 
ing is  still  in  B's  possession. 

(10.)  -A,  B's  servant,  obtains  by  false  pretences  from  C,  B's 
cashier,  the  property  in  coins  which  belonged  to  B  till  C  gave 
them  to  A.     The  possession  of  the  coins  is  in  A. 

(11.)  ^  A,  B,  and  C  are  all  servants  to  D.  D's  customers  pay 
money  to  C,  who  pays  it  to  A,  who  pays  it  to  B.  B,  A,  and  C 
each  keep  separate  accounts  of  their  receipts  and  payments,  so  as 
to  be  checks  on  each  other.  Money  of  D's  paid  by  C  to  A  is  in 
A's  possession,  and  not  merely  in  his  custody. 


Article  307. 

special  owner. 

*  Every  person  to  whom  the  general  owaier  of  a  movable 
thing  has  given  a  right  to  the  possession  as  against  the 
general  owner  is  said  to  be  the  special  owner  thereof,  or  to 
have  a  special  property  therein,  and  such  special  property  is 
not  divested  if  the  special  o^vner  parts  with  the  possession 
under  a  mistake. 

Article  308. 

POSSES.SOR   special   OWNER   AS    AGAINST   STRANGER. 

Every  person  who  has  obtained  by  any  means  the  posses- 
sion of  any  movable    thing   is   deemed    to    be    the    owner 

'  R.  V.  Ccjoke,  1871,  1  C.  C.  R.  295  ;  and  see  li.  v.  Rohiux,  X^'A,  Dear, 
n  S. 

-  11.  V.  //.  7'hompxov,  1862,  L.  &  C.  23.3. 

•'  J{.  V.  Mn^ttiM,  1H4H,  1  iJeii.  (J.  C.  Xi2.  Mr.  (Jreavc-H  (liKajijiroveH  of 
thJH  ileciHi'iii,  aii<l  tliiiiku  tliat  in  hucIi  a  caue  tlic  inoiiey  would  lie  in  tlie 
iMfiMtor'H  poMKCHMion  aH  MCKjn  UM  the  first  servant  received  it  on  liis  account. 
It.  V.  Murrny,  IK.'{(»,  Moo.  C.  C.  27<>,  perhapH  favours  this  view,  hut  the 
whole  drtctrine  of  posseMsion  is  mo  arbitrary  and  uni'eal  that  it  is  hard  to 
Hay  that  one  view  is  hetter  or  woi-hc;  than  another. 

*  It.  V.   Vincent,  IM.'>1',  '_'  Den.  Ki-I. 


246  A   DIGEST   OF 


thereof,  as  against  any  person  who  cannot  show  a  better  title 
thereto. 

Illustrations. 

(1.)  ^  A  finds  a  bezoar  stone  in  the  street  and  shows  it  to  B,  a 
jeweller,  to  ascertain  its  value.  B  keeps  it.  A  has  a  right  to 
the  stone  as  against  B. 

(2.)  -  A  steals  B's  watch.  C  picks  A's  pocket  of  the  watch. 
C  steals  from  A. 

Article  309. 

taking  and  carrying  away. 

A  thing  is  said  to  be  taken  and  carried  away  when  every 
part  of  it  is  moved  from  that  specific  portion  of  space  which 
it  occupied  before  it  was  moved  (although  the  whole  of  it 
may  not  be  moved  from  the  whole  of  the  space  which  it 
occupied),  and  when  it  is  severed  from  any  person  or  thing 
to  which  it  was  attached  in  such  a  manner  that  the  taker  has, 
for  however  short  a  time,  complete  control  of  it.  An  animal 
is  said  to  be  taken  and  driven  or  led  away  when  it  is  caused 
to  move  fi'om  the  place  where  it  was  before. 

Ilhistrations. 

(1.)  "^  A  removes  a  parcel  from  one  end  of  a  waggon  to  another. 
This  is  a  taking  and  carrying  away. 

(2.)  ^  A  lifts  a  sword  partly  out  of  its  scabbard.  A  has  taken 
and  carried  away  the  sword. 

(3.)  ^  A  causes  a  horse  to  be  led  out  of  a  stable  for  him  to 
mount.     A  has  led  away  the  horse. 

(4.)  ^  A,  a  postman,  instead  of  delivering  a  letter  in  due 
course,  or  bringing  it  back  in  his  pouch,  which  would  be  his 
duty  if  he  could  not  deliver  it,  puts  it  in  his  pocket  intending 
to  steal  it.      This  is  a  taking  and  carrying  away. 

1  Armory  v.  Delamirie,  1722,  1  S.  L.  C.  385. 

2  Foimded  on  1  Hale,  P.  C.  507. 

3  Coslet's  Case,  1782,  1   Lea.  2M. 

*  R.  V.  Wcdiih,  1824,  2  Russ.  Cr.  126  (from  MS.  of  Bayley,  J.),  and  1 
Moo.  C.  C.  14.  All  odd  point  woidd  arise  if  the  sword  and  scabbard  were 
merely  twisted  round  in  the  place  which  they  occupied  before  tliey  were 
touched.     I  suppose  this  would  not  be  an  asportation. 

5  R.  V.  Pitman,  1826,  2  C.  &  P.  423. 

c  R.  v.  Poynton,  1862,  L.  &  C.  247. 


THE    CRIMINAL   LAW  247 

(5.)  ^  A  snatches  a  diamond  earring  from  a  lady's  ear,  tearing 
it  out  of  the  ear  ;  it  drops  from  his  hand  into  her  hair,  and  is 
found  there  by  her  afterwards.  A  has  taken  and  carried  away 
the  earring. 

(6.)  -  Goods  are  tied  to  a  string,  one  end  of  which  is  fastened 
to  the  bottom  of  a  counter.  A  takes  and  carries  them  as  far 
as  the  string  will  permit.      A  has  not  carried  away  the  goods. 

(7.)  ^  A  has  gas  pipes  in  his  house  running  through  a  meter, 
such  pipes  being  his  property.  In  order  to  prevent  the  gas  from 
passing  through  the  meter  he  puts  a  connecting  pipe  between 
the  pipe  leading  to,  and  the  pipe  leading  from,  the  meter,  and 
so  diverts  the  gas  from  its  proper  course.  This  is  a  taking  and 
carrying  away  of  the  gas. 

Article  310. 

bailment  defined. 

When  one  person  delivers,  or  causes  to  be  delivered,  to 
another  any  movable  thing  in  order  that  it  may  be  kept  for 
the  person  making  the  delivery,  or  that  it  may  be  used,  gra- 
tuitously or  otherwise,  by  the  person  to  whom  the  delivery 
is  made,  or  that  it  may  be  kept  as  a  pledge  by  the  person  to 
whom  delivery  is  made,  or  that  it  may  be  carried,  or  that 
Avork  may  be  done  upon  it  by  the  person  to  whom  delivery 
is  made  gratuitously  or  not,  and  Avhen  it  is  the  intention  of 
the  parties  that  the  specific  thing  so  delivered,  or  the  article 
into  which  it  is  to  be  made  shall  be  delivered  either  to  the 
person  making  the  delivery  or  to  some  other  person  ap- 
pointed by  him  to  receive  it,  the  person  making  the  delivery 
is  said  to  bail  the  thing  delivered,  the  act  of  delivery  is 
called  a  bailment ;  the  person  making  the  delivery  is  called 
the  bailor ;  the  person  to  whom  it  is  made  is  called  the 
bailee.'* 

>  La/rier's  Case,  1784,  1  Lea.  320  ;  /.'.  v.  Simpson,  1854,  1).  &  1».  421. 
In  thi.s  ca.sc  a  watch  and  chain  snatched  out  of  one  button-liole  caiiglit  in 
another. 

-  2  l":ii8t,  ]'.  C.  ri.-)(i. 

3  It.  V.    Whitt,  IH.-..S,  1).  k  v.  2n:{. 

<  CfxjQH  V.  litnuinl,  17t)2,  2  S.  L.  (J.  201,  for  Itailnient  in  general.  For 
the  application  of  the  doctrine  to  criminal  law,  /{.  v.  J/<i.s.ti  I/,  lH(i!,  L.  & 
('.  58.  It  BccinH  that  a  married  woman  may  he  a  bailee  :  h'.  v.  Uuhnon, 
IH«1,  L.  AC.  «.T  Since  the  .Married  WomanV  l'n)perty  Act  (33  &  34 
\'ict.  c.  93;  it  would  Becm  clear  that  in  many  caMeu  nhe  can. 


248  A    DIGEST   OF 


Article  311. 

offences  relating  to  property  committed  hv  ax]) 
against  married  women. 

^  Ev'cry  married  woman,  whether  married  before,  on,  or  after 
1st  January,  1883,  has  in  her  own  name,  against  all  persons 
whomsoever,  including  her  husband,  the  same  remedies  and 
redress  by  way  of  criminal  proceedings  for  the  protection  and 
security  of  her  own  separate  property  as  if  such  property 
belonged  to  her  as  a  fcDie  sole,  provided  that  no  criminal 
proceeding  can  be  taken  by  any  wife  against  her  husband 
by  virtue  of  the  Married  Woman's  Property  Act  1882, 
while  they  are  living  together  as  to  or  concerning  any 
property  claimed  by  her,  nor  while  they  are  living  apart  as 
to  or  concerning  any  act  done  by  the  husband  while  they 
were  living  together  concerning  property  claimed  by  the  wife, 
unless  such  property  has  been  wrongfully  taken  by  the 
husband  when  leaving  or  deserting,  or  about  to  leave  or 
desert  his  wife. 

-  A  wife  doing  any  act  with  respect  to  the  property  of  her 
husband  which,  if  done  by  the  husband  with  respect  to  pro- 
perty of  the  wife,  would  make  the  husband  liable  to  criminal 
proceedings  by  the  wife  under  this  article,  is  in  like  manner 
liable  to  criminal  proceedings  by  her  husband. 

1  45  &  46  Vict.  c.  75,  s.  12. 

2  Ibid.  s.  16  (see  Article  327  below). 


THE   CRIMINAL    LAW  249 


CHAPTER   XXXV 

1  thixgs  capable  or  not  of  being  stolen 

Article  312. 

things  capable  of  being  stolen. 

Things  are  or  are  not  capable  of  being  stolen  according  to 
the  provisions  contained  in  this  chapter. 

Article  313. 

MOVABLE   things — LAND — THINGS    FIXED   TO   LAND. 

-  All  movable  things  are  capable  of  being  stolen,  whether 
they  are  naturally  movable  or  whether  they  were,  before 
being  severed  therefrom,  a  part  of,  or  built  upon,  or  growing 
out  of,  or  fixed  in  a  permanent  manner  to,  the  soil  of  the 
earth. 

The  soil  of  the  earth  itself  cannot  be  stolen,  by  removing 
landmarks,  building  so  as  to  make  jjermanent  encroachments 
or  other  means  of  the  same  kind. 

Things  growing  out  of,  built  upon,  permanently  attached 
to,  or  forming  part  of  the  soil,  cannot  be  stolen  whilst  they 
continue  to  be  so  attached  to  it  or  to  form  part  of  it,  or  b}^ 
the  act  of  severance,  ^  except  in  the  cases  provided  for  in 
Articles  352  and  353  (c)  to  {<j). 

Article  314. 

title-deeds  and  choses  in  action. 

^  Documents  which  in  any  way  relate  to  the  title  to  real 
property,  and  documents  which   constitute   evidence  of  any 

'  .'i  Hint.  Cr.  Law,  cli.  xxix.  |i|).   i'JI    I7<>. 

^  2  KuHH.  Cr.  209  2I(». 

•''  Sw;  uIho  Arliirlc  .■<22,  jtiim.  ('.\). 

*  2  KuHM.  Cr.  217  21  y. 


250  A    DIGEST   OF 


right  of  action  against  any  person,  are  not  capable  of  being 
stolen,  unless  they  fall  within  the  terms  of  Article  349  or 
the  first  paragraph  of  Article  353 ;  but  documents  of  title  to 
chattels  and  tokens  which  represent  them  are  capable  of 
being  stolen. 


Illustrations. 

(1.)  ^  An  unstamped  written  agreement  for  building  cottages 
under  which  work  has  been  and  is  being  carried  on  is  not 
capable  of  being  stolen. 

(2.)  -  A  pawnbroker's  ticket  is  capable  of  being  stolen. 


Article  315. 

water — gas — electricity, 

Running  or  standing  water  is  not  capable  of  being  stolen 
*  unless  [it  seems]  it  is  stored  in  pipes  or  reservoirs  for  the 
purpose  of  sale  or  use,  in  which  case  it  is  capable  of  being 
stolen,  although  money  penalties  are  provided  for  an  improper 
use  of  it. 

^  Gas  is  capable  of  being  stolen. 

^  Electricity  is  capable  of  being  stolen. 

1  /?.  V.   Watts,  1854,  D.  &  P.  .326. 

2  B.  V.  Morrison,  1859,  Bell,  C.  C.  158.  It  lias  been  held  that  a  rail- 
way ticket  is  capable  of  being  stolen  :  B.  v.  Boulfon,  1849,  1  Uen.  508. 
In  B.  V.  Kilhani,  1870,  1  C.  C.  R.  2G1,  it  is  said  that  "the  reasons  for 
this  decision  do  not  very  clearl}^  appear."  It  is,  indeed,  very  hard  to 
reconcile  the  decision  with  the  established  principle  as  to  "  choses  in 
action,"  for  wliat  is  a  railwaj-  ticket  except  evidence  of  a  contract  by  the 
railway  to  carry  the  holder  ? 

3  "Water  is  a  movable  wandering  thing,  and  must  of  necessity  con- 
tinue common  by  the  law  of  nature,  so  that  I  can  only  have  a  temporary 
transient  usufructuary  property  therein "  (Blackstone,  1  Steph.  Com. 
170-171,  11th  ed.).  As  to  water  in  standpipes,  see  Ferens  v.  O'Brien, 
1883,  11  Q.  B.  T).  21. 

*  Would  a  man  who  drew  a  pail  of  water  out  of  a  reservoir  covering 
many  acres  be  guilty  of  theft  ?     Hardly,  I  should  tliink. 

6  B.  V.  Firth,  1869,  L.  R.  1  C.  C.  R.  172;  B.  v.  White,  1853,  D.  &  P. 
203. 

6  45  &  46  Vict.  c.  56,  s.  23,  and  see  Art.  353  (h). 


THE   CRLMIXAL    LAW  251 

Article  316. 
tame  animals  and  wild  animals  in  captivity. 

(rt.)  ^  The  followang  animals  are  capable  of  being  stolen  at 
common  law ; 

tame  animals,  whether  originally  wild  or  not,  birds,  bees, 
and  silkworms  kept  respectively  for  food,  labour,  or  profit, 
their  young  and  their  produce  ; 

hawks  kept  for  sport ; 

wild  animals  in  a  state  of  captivity  kept  for  food  or 
profit,  -  but  not  wild  animals  kept  in  a  state  of  captivity  for 
curiosity. 

(h.)  The  following  animals  are  the  subject  of  larceny  by 
statute  : 

^  dogs,  birds,  beasts,  and  other  animals  ordinarily  kcjjt  in  a 
state  of  confinement,  or  for  any  domestic  purpose. 

(c.)  *  Animals  of  a  base  nature  are  not  capable  of  being 
stolen  either  at  common  law  or  by  statute  unless  they  are 
ordinarily  kept  in  a  state  of  confinement,  or  for  any  domestic 
purpose,  in  which  case  they  are  the  subjects  of  larceny  by 
statute. 

^  An  animal  capable  of  being  stolen,  whatever  may  be  its 
nature,  does  not  cease  to  be  capable  of  being  stolen  because 
it  is  permitted  at  certain  times  to  wander  abroad. 

Illustrations. 

(1.)  ^  The  milk  of  a  cow,  the  wool  on  a  sheep's  back,  lionoy  in 
a  hive,  are  the  subjects  of  larceny  at  common  law. 

»  2  Ru88.  Cr.  2.3.3-239. 

2  2  Iluss.  Cr.  238. 

3  24  &  25  Vict.  c.  96,  ss.  18  aiul  21.     See  Article  354. 

<  Coke,  3r.l  Inst.  108,  9;  2  Ku.ss.  Cr.  234-239.  Ferrets,  so  far  as  I 
know,  are  the  only  animals  to  wliieli  (c)  has  been  applied  in  nuxlern  times. 
In  It.  V.  Stariiifj,  1818,  K.  &  K.  350,  "  It  appeared  in  evidence  that  ferrets 
are  valuable  animals,  anil  th<jse  in  (juestion  were  sold  l)y  the  jji'isoner  for 
9h.  'J'he  judges  were  of  opinion  (in  1818)  that  ferrets,  thoiigli  tame  and 
salealile, could  not  l>e  tlie  subject  of  larceny."  I  know  not  whethci-  a  ferret 
would  fall  witliin  (h)  or  not.  It  is  necessary  to  mark  the  distinction 
l>etween  animals  which  are  tiie  subject  of  laiceny  at  common  law  and  those 
which  are  the  subject  of  larceny  l)y  statute,  because;  it  is  recognised  in 
Bcveral  statutes.     See  24  8c,  25  Vict.  c.  96,  ss.  2 1 . 

i  2  KusB.  Cr.  233-4. 


252  A    DIGEST   OF 


(2.)  ^  Young  partridges  or  plieasants  reared  under  a  domestic 
fowl  are  regarded  as  tame,  and  as  such  are  tlie  subjects  of 
larceny  at  connnon  law  till  they  become  wild. 

(3.)  -  Deer  in  a  paddock,  rabbits  in  a  hutch,  are  the  subjects  of 
larceny  at  common  law.  Bears  oi'  monkeys  kept  in  dens  are 
the  subjects  of  larceny  by  statute. 

(4.)  ^  Young  partridges  reared  under  a  common  hen  do  not 
cease,  so  long  as  they  are  practically  under  the  dominion  of  their 
owner,  to  be  the  subjects  of  larceny  at  common  law  because  they 
are  allowed  to  wander  abroad. 

(5.)  ■*  Pigeons  in  a  dovecot  are  the  subjects  of  larceny  at 
common  law  although  they  are  allowed  to  fly  al)out. 

Article  317. 

wild  animals  living  and  dead. 

•''  Living  wild  animals  in  the  enjoyment  of  their  natural 
liberty,  whether  they  have  escaped  from  confinement  or  not, 
are  not  capable  of  being  stolen  although  they  may  be  game, 
and  although  it  may  be  an  offence  to  pursue  or  kill  them  ;  ^ 
but  the  dead  body  of  such  an  animal  is  capable  of  being 
stolen,  and  the  presumption  is  that  it  becomes  the  property 
of  the  person  on  whose  ground  the  animal  dies.^ 

Article  318. 

dead  bodies. 

^  The  dead  body  of  a  human  being  is  not  capable  of  being 
stolen. 

1  i?.  V.  Shickle,  1868,  1  C.  C.  R.  158  ;  R.  v.  Cory,  1864,  10  Cox,  C.  C.  23. 

2  2  Russ.  Cr.  234-238. 

3  B.  V.  SJiickle,  1868,  1  C.  C.  R.  158. 

*  B.  V.  Cheajor,  1851,  2  Den.  361.  It  has  not,  however,  been  decided 
that  pigeons  can  be  stolen  whilst  actually  flying  aljout  apparently  at 
liberty.  I  suppose  the  question  would  turn  on  the  knowledge  of  the 
offender  that  the  pigeons  were  tame. 

''  2  Russ.  Cr.  236. 

•*  See  Chapter  XLIX.  Oysters  are  tlie  subject  of  larceny  by  statute  ; 
see  Art.  353  (g),  but  thej'  can  hardly  be  called  "  living  wild  animals." 

7  Blades  v.  Hif/<js,  1865,  11  H.  L.  C.  621  ;  34  L.  J.  (C.P.)  286.  But 
see  B.  V.  Toionley,  1870,  1  C.  C.  R.  315,  and  Article  322,  3rd  paragraph. 

*  B.  V.  Haynes,  2  East,  P.  C.  652.  Can  skeletons  and  anatomical 
preparations  of  parts  of  dead  bodies,  or  which  formerly  formed  parts  of 
bodies  when  living,  be  stolen  ? — teeth,  for  instance,  intended  to  be  used  as 
false  teeth. 


THE   CRIMINAL    LAW  253 

Article  319. 

things  abandoned. 

^  Things  of  which  the  oAvnership  has  been  abandoned  are 
not  capable  of  being  stolen. 


Illustrations. 

(1.)  -  To  convert  treasure  trove  before  office  found  is  not 
theft. 

(2.)  ^  To  convert  wreck  of  the  sea  is  not  theft  [if  the  owner 
is  unknown]. 

(3.)  ^  To  convert  goods  absolutely  lost  to  the  owner,  and  as  to 
which  there  is  no  reasonable  ground  for  believing  that  the 
owner  can  be  found,  is  not  theft. 


Article  820. 

things  of  no  value. 

*  Things  of  no  value  to  any  one  are  not  capable  of  being 
stolen,  but    things   valuable    to    no    one  but  the  owner  are 


capable  of  being  stolen. 


Illustration. 


^  The  paper  and  stamps  of  the  notes  of  a  firm  of  country 
hankers  which  iiave  been  paid  by  the  London  correspondent  and 
which  are  capable  of  being  reissued  by  the  country  bankers 
may  be  stolen,  because  they  are  valuable  to  the  country  bankers 
(as  saving  the  expense  of  printing  new  notes),  though  to  no  one 
else. 

'  2  East,  P.  C.  fiof)  7. 

'^  3  Inst.  108.      It  iK,  however,  a  misdemeanour.     See  Article  371. 

'  1  Hawk.  1*.  C.  149,  h.  3S.  This  must  lie  underslooil  of  wreck  of  the 
boa  un<;lainic(l,  and  not  of  wreck  forniinj^  jiart  of  or  belonging  to  a  vessel 
in  <iiHlreMM,  as  to  stealing  wliicii  see  .Article  3.11  (7)  ami  Okc's  Synopsis, 
jj.  (iH'2.  IV-nalticH  for  various  oU'enceH  as  to  wreck  are  contained  in  tlio 
.Merchant  Shipping  Act,  1S1)4,  for  the  contents  of  which  previous  to  con- 
Holiijation  H<;e  1  Okf,  p.  (\]4. 

*  The  law  as  to  finding  property  is  more  fidly  stated  in  Article  328. 

^  C'/arArA  C'ewr,   lHil!»,  "i  Lea.   ll)3«i. 


254  A    DIGEST  OF 


CHAPTER  XXXVI 

*  THEFT  IN  GENERAL 

Article  321. 
definition  of  theft. 

^  Theft  is  the  act  of  dealing,  from  any  motive  whatever, 
unlawfully  and  without  claim  of  right  with  anything  capable 
of  being  stolen,  in  any  of  the  ways  in  which  theft  can  be 
committed,  with  the  intention  of  permanently  converting 
that  thing  to  the  use  of  any  person  other  than  the  general 
or  special  owner  thereof  Provided  that  the  offences  defined 
in  Articles  368  and  369  do  not  amount  to  theft. 

The  Avays  in  wiiich  theft  can  be  committed  are  specified 
in  Articles  322  to  326,  both  inclusive.  In  those  articles 
the  word  "  convert "  means  such  a  conversion  as  is  herein- 
before specified. 

A  claim  of  right  may  be  founded  on  a  mistake  of  law. 

Illustrations. 

(1.)  ^  A  takes  B's  horse  from  his  stable  and  backs  him  down 
a  coal-pit  a  mile  ofiF,  in  order  to  prevent  the  horse  from  being 
identified  in  the  trial  of  C  for  stealing  it.     A  steals  B's  horse. 

(2.)  ^  A,  a  post-office  clerk,  drops  two  letters  down  a  water- 
closet  in  order  that  a  mistake  which  he  had  made  in  sorting 
them  might  not  be  discovered.     A  steals  the  letters. 

(3.)  ■*  A,  a  servant,  gets  B's  letters  from  the  post-office,  and 
destroys  one  of  them  written  to  B  by  C,  A's  mistress,  making 
inquiries  of  B  as  to  A's  character,  delivering  the  rest.  A  steals 
the  letter. 

(4.)  ^  A,  a  puddler,  throws  an  iron  axle  into  his  furnace  in 
order   to   increase  the  apparent  amount  of  iron  puddled  therein, 

*  3  Hist.  Cr.  Law,  ch.  xxviii.  pp.  121-176. 

1  R.  V.  Holloiray,  1848,  1  Den.  370. 

2  R.  V.  Cahbar/e,  1815,  R.  &  R.  292  ;  2  Russ.  Cr.  205. 

3  Wynii's  Ca,se,  1848,  1  Den.  365. 
*  R.  V.  Jones,  1846,  1  Den.  188. 

^  R.  V.  Richards,  1844,  2  Russ.  Cr.  207  ;  1  C.  &  K.  532.  This  case  is 
not  altogether  easy  to  reconcile  with  R.  v.   Webb  ;  see  Illustration  (9). 


THE   CRIMINAL    LAW  255 

on  which  A's  -wages  depend.  The  axle,  worth  5*'.,  is  destroyed, 
though  the  iron  of  which  it  is  composed,  and  which  is  much  less 
valuable,  remains  for  the  owner.      A  has  stolen  the  axle. 

(5.)  ^  A,  without  his  master's  leave,  takes  his  master's  corn  to 
feed  his  master's  horses.  This  was  theft  till  the  passing  of  26 
ck  27  Vict.  c.  103. 

(6.)  -  A  gleans  corn,  laot  having,  but  believing  himself  to  have, 
a  legal  right  to  do  so.     This  is  not  theft. 

(7.)  ^  B,  a  gamekeeper,  takes  snares  set  by  A,  a  poacher,  and 
a  dead  pheasant  caught  therein.  A,  honestly  believing  that  the 
snares  and  pheasant  were  his  property,  and  that  he  had  a  legal 
right  to  them,  forces  B  by  threats  to  return  them.  This  is  not 
robbery,  and  if  no  violence  were  used  would  not  be  theft. 

(8.)'*  A,  believing  that  B  owes  him  £11,  and  seeing  B  receive 
£1 ,  knocks  down  B  and  tries  to  get  the  £7  out  of  his  pocket, 
.saying,  "  Pay  me  the  eleven  sovereigns  you  owe  me."  This  is 
not  robbery,  and  if  no  violence  were  used  would  not  be  theft. 

(9.)  ^  The  ore  in  a  mine  belongs  to  adventurers,  and  is  to  be 
excavated  by  tributers.  One  set  of  tributers  are  to  be  paid  a 
larger  sum  in  the  pound  than  the  other  set  for  the  ore  excavated 
by  them.  The  ore  excavated  by  each  set  is  placed  in  a  heap  by 
itself.  A,  one  of  the  tributers,  moves  a  quantity  of  ore  from 
the  heap  to  be  paid  for  at  the  lower  to  the  heap  to  be  paid  for 
at  the  higher  rate.     A  has  not  stolen  the  ore. 

(10.)  ^^  Workmen  in  the  glove  trade  are  paid  according  to  the 
number  of  gloves  finished  by  them.  A  (a  workman)  takes 
gloves  from  his  master's  warehouse  and  puts  them  in  the  place 
where  the  newly  finished  gloves  are  put  to  be  counted,  so  as  to 
increase  the  apparent  number  of  newly  finished  gloves,  and  with 
intent  fraudulent!}'  to  obtain  payment  for  the  gloves  so  removed 
from  the  warehouse.     This  is  not  theft. 

(11.)  ^  B  uses  many  bags  in  his  trade,  and  is  supplied  with 
them  by  C.  A,  B's  servant,  takes  old  bags  supplied  by  C  to  B 
from   B's   house   and    puts   them  in  a   place   outside   B's  house, 


'  l{.  V.  Mwjii,  1>S16,  R.  &  R.  307. 

'''  2  Rusa.  Cr.  20.'}  ;  commenting  on  W'oodf.ill,  Lanillord  ami  'J'cnanl. 

■■  ]{.  V.  llah-,  1S28,  3  C.  &  P.  4()9. 

^   /.'.  V.  lifxlen,  1H44,  1  C.  &  K.  3i)5. 

'-  It.  V.  \\\h\,,  is:ir);  1  Moo.  4:il.  l}y  24  &  25  Vict.  e.  n(i,  8.  .3(1, 
\^  hicli  re-cnuclH  iin  curlier  Act  |ia»8C(l  in  cunHciiuence  of  IIiIm  deciHion,  tliis 
JH  now  felony  ;  nee  Article  369. 

0  U.  V.  I'iMi'.,  lH.-)7,  \).  k  H.  34."j  ;  /.'.  v.  Ilullmmy,  ISIS.  I  D.ii,  .'{Tu, 
in  8iniilar  in  principle. 

7  It.  V.  Manniiiij,  1852,  I).  &  1*.  2!  ;  It.  v.  Ilnl, ,  I.S4S,  1  Den.  3Sl,  in 
very  like  thin  cone. 


256  A    DIGEST   OF 


where  new  bags  were  habitually  put  by  C.  C,  by  concert  with 
A,  claims  payment  for  the  bags  from  B  as  for  bags  newly 
supplied.  A  is  guilty  of  theft,  and  C  is  an  accessory  before  the 
fact. 

Article  322. 
theft  by  taking  and  carrying  away. 

^  Theft  may  be  committed  by  taking  and  carrying  away 
without  the  consent  of  the  owner  (even  if  he  expects  and 
affords  fecilities  for  the  commission  of  the  offence)  anything 
which  is  not  in  the  possession  of  the  thief  at  the  time  when 
the  offence  is  committed,''  whether  it  is  in  the  possession  of 
any  other  person  or  not. 

If  the  thing  taken  and  carried  away  is  on  the  body  or 
in  the  immediate  presence  of  the  person  from  whom  it  is 
taken,  and  if  the  taking  is  by  actual  violence  intentionally 
used  to  overcome  or  to  prevent  his  resistance,  or  by  threats 
of  injury  to  his  person,  property,  or  reputation,  the  offence 
is  robbery. 

^  If  the  thing  taken  and  carried  away  is  for  the  first  time 
rendered  capable  of  being  stolen  by  the  act  of  taking  and 
carrying  away,  and  if  the  taking  and  carrying  away  is 
one  continuous  act,  such  taking  and  carrying  away  is  not 
theft  (except  in  the  cases  provided  for  in  Articles  352, 
353  (c),  (d),  (e),  (J),  {g),  (h)  ).  It  seems  that  the  taking  and 
carrying  away  are  deemed  to  be  continuous  if  the  intention 
to  carry  away  after  a  reasonable  time  exists  at  the  time  of 
the  taking. 

Illustrations. 

(1.)  ^A  finds  lost  property,  knowing  who  the  owner  is,  and 
converts  it.     This  is  theft. 


'  Cases  in  Illustrations. 

-  Property  in  no  one's  possession  is  said  to  be  constructively  in  the 
possession  of  its  owner  :  the  object  of  this  fiction  is  to  satisfy  a  supposed 
necessity  for  showing  that  the  taking  in  theft  must  be  a  taking  out  of 
some  one's  possession. 

3  B.  V.  Townky,  1870,  1  C.  C.  R.  315. 

*  See  Article  328  on  "Finding." 


THE    CRIMINAL    LAW  257 

(2.)  ^  A,  a  trespasser,  finds  a  dead  rabbit  13'ing  in  a  wood, 
of  which  he  is  not  the  owner,  and  converts  it.  This  is 
theft. 

(3.)  -  A  carpenter  finds  nine  hundred  guineas  in  a  bureau  lent 
to  him  to  repair,  and  converts  them.      This  is  tlieft. 

(4.)  ^  A  finds  iron  dropped  from  some  canal  boat  or  other,  at 
the  bottom  of  a  canal,  from  which  the  water  has  been  let  off, 
and  converts  it.      This  is  theft. 

(5.)  *  A  instigates  B,  C's  servant,  to  help  A  to  steal  money  in 
C's  desk.  B  tells  his  master,  C.  C,  in  order  to  detect  A,  tells 
B  to  go  on  with  the  business,  and  so  arranges  matters  as  to  give 
A  and  B  opportunities  to  break  open  the  desk  and  take  the 
money.     This  is  theft  in  A. 

(6.)  ^  A  snatches  a  bundle  from  B's  hand,  and  runs  awa}'  with  it. 
This  is  theft,  and  not  robbery,  as  the  violence  used  was  only  to 
get  possession  of  the  bundle. 

(7.)  ^  A,  at  a  mock  auction,  knocks  down  goods  to  B,  who  has 
not  bid  for  them,  pretending  that  she  has.  On  B's  offering  to 
go,  A  says  she  shall  not  be  allowed  to  go  unless  she  paj's  for  the 
goods  knocked  down  to  her,  which  she  does.  This  is  theft  at 
least,  and  perhaps  robbery. 

(8.)  ^  A  snatches  a  sword  worn  by  B.  A  and  B  struggle  for 
the  sword,  and  A  gets  it.     This  is  robbery. 

(9.)  *  A,  in  cutting  the  string  by  which  a  basket  is  tied,  with 
intent  to  steal  it,  accidentally  cuts  the  wrist  of  the   owner,  who 


»  Blades  v.  Higgs,  1865,  11  H.  L.  C.  621. 

2  Cartu-right  v.  Green ,  1803,  8  Ves.  405. 

3  li.  v.  nowe,  1859,  Bell,  C.  C.  93.  In  this  case,  Pollock,  C.B.,  said 
the  company  had  "sufficient  possession  to  maintain  an  indictment  for 
larceny."     The  "possession"  in  question  could  scarce!}'  be  called  actual. 

*  H.  V.  Eftginloii,  1801,  2  East,  P.  C.  666.  Tliis  was  similarly  decided 
by  the  Romans,  "  illud  quiusitum  est  cum  Titius  servum  Ma-vii  sollici- 
taverit,  ut  cjuasdam  res  ilomino  subriperet  et  ad  eum  perferret,  et  servus 
eas  ad  Mitvium  pertulerit.  Mx-vius  autem  diim  vidt  Titium  in  ii)so 
delicto  ileprehendere  permiserit  servo  quaschim  res  ad  eum  perferre,  utrum 
furti  an  servi  corrupti  Judicio  teneatur  Titius  an  neutro  ?  Et  cum  nol)is 
super  hac  duljitatione  suggestum  est  et  anticiuoruiii  prudentium  super  lioe 
altercationes  perspeximus  fpiibusdam  ne(|ue  furti,  iieque  servi  corrujjti 
aotionem  pra-stantibus,  quibusdam  furti  tantunmiodo :  noa  hujusnuxli 
cilliditati  fdjviam  euntes  per  nostram  decisionem  sancimus  non  solum 
furti  actionem  sed  ct  servi  corrupti  contra  eum  <lari."—  Iiifstitutes, 
iv.  i.  8. 

''  Six  caKCB  all  to  tliis  efTect  are  collecte<l  in  2  Rush.  ( 'r.  90. 

«  /^  V.  Mrdrulh,  1 809,  1  C.  C.  R.  205.  The  case  <.f  /.'.  v.  Miirgnu, 
IH54,  I),  k  I'.  395,  is  Homcwliat  similar;  see,  too,  I!,  v.  /.unit,  IK81, 
S  Q.  H.  I).   IM5,  which  is  to  the  Kame  eirc-ct. 

"    /)>n-itM   Cnxf,  1712,  2  EaHt,  P.  C.   709. 

"^   K.  V.  Edwardx,  IK43,  4  C<.x,  C.  (J.  32  ;  2  Ruhh.  Cr.  91. 


258  A    DIGEST   OF 


at  the  same  moment  tries  to  seize  and  keep  it.  The  cut  causes 
the  owner  to  withdraw  her  hand,  and  A  gets  the  basket.  This 
is  theft,  but  not  i-ohbery,  because  tlio  actual  violence  was  not 
intentional. 

(10.)  ^  A,  ]>,  and  C  surround  ])  in  such  a  way  as  to  make 
resistance  by  D  practically  useless,  and  take  his  watch,  without 
actual  force  or  threat.      This  is  robbery. 

(11.)  ^  A  mob  of  seventy  persons  demands  money  of  a  person, 
threatening,  if  he  refuses,  to  tear  his  mow  of  corn  and  level  his 
house  ;  he  gives  it.      This  is  robbery. 

(12.)  ^  A  compels  B  to  give  him  money,  by  threatening  to 
accuse   A  of  an  infamous  crim(\      This  is  robbery. 

(1  3.)  *  A  rips  lead  off  a  church,  to  the  roof  of  which  it  is  fixed, 
and  carries  it  away.  This  is  not  theft  at  common  law,  though  it 
is  by  statute. 

(14.)^  A  cuts  down  timber  or  growing  crops  and  carries  them 
away  immediately.  This  is  not  theft  at  common  law  though  it 
is  by  statute. 

(15.)  ®  A,  a  poacher,  kills  a  number  of  rabbits,  hides  them  in 
a  ditch  on  the  ground  of  the  owner  of  the  soil  on  which  they 
were  killed,  and  returns  several  hours  afterwards  and  carries 
them  awa}',  having  all  along  intended  to  do  so  at  his  convenience. 
This  is  not  theft. 

Article  323. 
theft  by  a  servant.     embezzlement. 

Theft  may  be  committed  by  converting,  without  the  con- 
sent of  the  owner,  anything  of  which  the  offender  has  received 
the  custody  as  the  servant  of  the  owner,  or  in  order  that  the 
thing  may  be  used  by  the  offender  for  some  special  tem- 
porary purpose  in  the  presence  or  under  the  immediate  control 
of  the  owner  or  his  servant. 

''When  a  clerk,  or  servant,  or  person  employed  in  the 
capacity  of  a  clerk  or  servant,  converts  anything  received  by 

1  Hughes's  Case,  1825,  1  Lewin,  SOL 

2  Sivwn's  Case,  1773,  2  East,  P.  C.  731. 

3  See  cases  collected  in  2  Russ.  Cr.  99-110.  Some  distinctions  arise 
upon  this  which  I  do  not  notice,  because  this  most  odious  crime  is  now 
dealt  with  specially  by  statute.      See  post,  Article  340. 

■*  See  authorities  collected  2  Russ.  Cr.  209-10. 

■'>  Ibid. 

6  R.  V.  Tovmley,  1870,  1  C.  C.  R.  315. 

'  See  Chapter  XXXVII. 


THE   CRIMINAL    LAW  259 

him  from  another  person  for  his  master  or  employer,  he 
is  deemed  to  have  stolen  it,  but  his  offence  is  commonly 
called  embezzlement,  and  is  distinguished  from  theft  for 
the  purposes  and  in  the  manner  mentioned  in  Chapter 
XXXVII. 

Illustrations. 

(1.)^  A  carter  converts  to  his  own  use  a  cart  which  he  is 
driving  for  his  master.      He  commits  theft. 

(2.)  -  A  is  employed  by  B  to  take  pigs  to  C  to  be  looked  at, 
and  to  bring  them  back  to  B,  wliether  C  wishes  to  buy  them  or 
not.  A  sells  the  pigs  to  some  one  else,  and  keeps  the  money. 
This  is  theft. 

(3.)  ^  A  sheriff's  officer,  in  possession  of  goods  under  a  writ  of 
fi.  fa.,  sells  part  of  them.  This  is  theft,  as  such  a  person  is  in 
the  position  of  a  servant. 

(4.)  *  A  guest  at  a  tavern  carries  off  a  piece  of  plate  set  before 
him  to  drink  from.  This  is  theft,  because  K.  had  only  a  per- 
mission to  use  the  plate  for  a  special  limited  purpose. 


Article  324. 

theft  by  a  false  pretence. 

Theft  may  be  committed  by  fraudulently  obtaining  from 
the  owner  a  transfer  of  the  possession  of  a  thing,  the  owner 
intending  to  reserve  to  himself  his  property  therein,  and 
the  offender  intending,  at  the  time  when  the  possession  is 
obtained,  to  convert  the  thing  without  the  owner's  consent 
to  such  conversion.'' 

lUustrations. 

fl.) '^  A  fraudulently  persuades  B  to  allow  A  to  take  two 
silver  ewers  to  .show  to  A's  master,  to  clioose  one  if  lie  [jleased. 
A  sells  the  ewers  and  keeps  the  money.     This  is  theft. 


'    II'MiuioiCh  Ccue,  1755,  2  Eant,  1*.  (J.  T))!"). 
■i   It.  V.  JIarre.y,  1840,  9  C.  &  P.  353. 
'  II.  V.  KiLHifUl,  \H-12,  2  RuH8.  Cr.  250. 
«    1  Hiile,  I'.  C.  50«). 

•   II.  V.   Ilnllix,  1SK.3,   12  g.  H.  I).  25,  »i  ca«c  of  "  rinj^iii^  tlir  .IwiiigcH. 
"   /.'.  V.   /)Hrfn/>f>rf,   IH2«,  2  Kuhh.  Cr.   147. 

s  2 


!60  J     Dlf^EST    OF 


(2.)  ^  A>  by  pretending  to  be  B,  fraudulently  obtains  B's  goods 
from  C,  a  carrier,  to  whom  they  were  entrusted  by  B.  This  is 
theft,  as  the  carrier  transferred  the  possession  only. 

(3.)  -  A  fraudulently  bargains  with  B  for  the  purchase  by  A 
of  goods  for  ready  money,  and  fraudulently  induces  B  to  let  A 
have  the  goods,  pretending  that  he  is  then  about  to  pay  B  the 
price.  A  then  takes  away  the  goods,  and  does  not  pay  the 
price.  This  is  theft,  as  in  such  cases  the  vendor  does  not  mean 
to  transfer  the  property  till  the  money  is  paid. 

(4.)  ^  A  fraudulently  agrees  to  sell  a  horse  at  a  fair  to  B  for 
£8  down  and  £15  on  delivery;  B  pays  A  the  £8,  which  A 
keeps,  though  he  never  delivers  the  liorse  to  B.  This  is  theft  in 
A,  as  B  did  not  mean  to  part  with  his  property  in  the  <£8  till 
the  horse  was  delivered  to  him. 

(5.)  *  A  fraudulently  obtains  goods  and  money  from  a  shop- 
keeper by  pretending  to  give  him  diamonds  for  them.  This  is 
not  theft.,  as  the  shopkeeper  means  to  transfer  the  property  in 
the  goods. 

(6.)  ^  A  fraudulently  induces  B  to  give  her  ten  sovereigns  to 
conjure  with,  promising  to  bring  back  the  ten  sovereigns  and 
170/.,  to  which  A  says  B  is  entitled.  A  carries  off  the  ten 
sovereigns.  If  the  ten  sovereigns  were  to  be  returned,  this  is 
theft.  If  not,  it  is  not  theft,  but  is  obtaining  money  by  false 
pretences. 

(7.)  ^  B  pays  five  shillings  to  A  on  a  fraudulent  assurance  that 
A  will  pay  forty  shillings  to  B  if  a  certain  horse  wins  a  race ; 
while  the  race  is  being  run  A  takes  the  money  away.  This  is 
theft,  whether  the  horse  wins  or  not. 

(8.)  ''  A  pretends  to  put  three  shillings  in  a  purse,  and  then 
sells  the  purse  and  its  contents  for  one  shilling.      This  is  not  theft. 

(9.)  ^  A,  B's   wife,  by  a  forged  order  gets  money  standing  to 


1  n.  v.  Longsheilh,  1826,  2  Russ.  Cr.  150  ;  1  Moo.  C.  C.  137.  There 
are  a  great  number  of  other  cases  to  the  same  effect  ;  e.g.  B.  v.  McKale, 
1868,  1  C.  C.  R.  125. 

2  Four  cases  to  this  effect  are  stated  in  2  Russ.  Cr.  157-159. 

3  B.  v.  Biussett,  1892,  2  Q.  B.  312. 

*  jf?.  V.  Jack-soil,  1826,  1  Moo.  119.  The  offence  would  be  obtaining 
goods  by  false  pretences. 

5  B.  v.  Bunce,  1859,  1  F.  &  F.  523. 

6  B.  V.  Buckmaster,  1887,  20  Q.  B.  D.  182. 

7  B.  V.  Solomons,  1890,  62  L.  T.  N.  S.  672  ;  17  Cox,  C.  C.  93.  The 
judges  said  that  if  any  offence  was  committed  it  was  oV>taining  money  by 
false  pretences,  because  the  prosecutor  intended  to  part  with  both  the 
property  in  and  the  possession  of  his  shilling.  It  seems  doubtful  whether 
A's  trick  amounts  to  a  false  pretence,  as  it  also  partakes  of  the  nature  of 
a  wager  that  he  can  deceive  B  by  his  sleight  of  hand. 

8  B.  V.  Prince,  1868,  1  C.  C.  R.  150. 


THE    CRIMINAL    LAW  261 

B's  credit  at  B's  bankers.  This  is  not  theft  from  the  bankers* 
as  the  cashier  had  a  general  authority  to  part  with  the  bankers 
money,  and  meant  to  do  so. 


Article  325. 
theft  by  taking  advaxt.vge  of  a  mistake. 

^  Theft  may  be  committed  b}'  ^  converting  property  which 
the  general  or  special  owner  has  given  to  the  offender  under 
a  mistake  which  the  offender  has  not  caused,  but  which  he 
knows  to  be  such  at  the  time  when  it  is  made,  and  of  which 
he  fraudulently  takes  advantage. 

-But  it  is  doubtful  whether  it  is  theft  fraudulently  to 
convert  property  given  to  the  person  converting  it  imder 
a  mistake  of  which  tliat  pers(in  was  not  aware  when  he 
received  it. 

Illuairations. 

(1.)  ^  A  having  to  receive  ten  shillings  from  a  post-office 
savings  bank,  produces  to  the  clerk  a  warrant  for  that  amount. 
The  clerk,  referring  by  mistake  to  another  letter  of  advice,  puts 
on  the  counter  8/.  IBs.  lOd.,  which  A  takes  away.  This  is 
theft.  

'  I{.  V.  Middltton,  1873,  2  C.  C.  R.  38.  Perhaps  "  by  knowingly 
accepting  with  intent  to  convert "  would  be  a  more  accurate  way  of 
exj)ressing  the  effect  of  this  case. 

-  R.  V.  AxhweU,  1885,  10  Q.  15.  1).  190,  was  reserved  in  consequence  of 
tlie  expression  of  doubt  in  the  text.  Keogh,  meaning  to  lend  Ashwell  a 
Ehilling,  put  into  his  liand  a  coin  which  at  the  time  each  believed  to  be  a 
sliilling.  It  was  a  sovereign,  and  Asliwell  foun<l  tliis  out  an  hour  after- 
wards, and  kc])t  it.  'I'hc  (luestif)n  wlietiier  this  was  larceny  or  not  was 
twice  argued,  tiie  last  time  before  fourteen  judges,  of  wlioni  I  was  one. 
.Seven  thouglit  that  it  was,  and  seven  that  it  was  not  larceny,  and  tiie  result 
was  that  the  conviction  stooil.  In  I\'.  v.  F/owtrt,  1886,  10  Q.  15.  D.  043, 
the  facts  of  wliicli  appear  to  me  not  distinguishable  fnjm  those  in  A',  v. 
Afhu'dl,  several  of  the  judges  who  aflinned  the  conviction  of  Ashwell 
explained  that  they  did  not  mean  Ijy  tliat  decision  to  thiow  doulit  on  tiie 
rule  that  an  innocent  taking  HUccee<led  by  a  fraudulent  misapjii-ojniation 
is  not  larceny.  li.  v.  Ashinll  must  tlieiefore  be  regar<led  as  at  most 
an  authority  for  u  case  precisely  similar  in  all  its  circunistances,  but  even 
thin  is  not  dear.  No  doul>t  in  R.  v.  Wiiiflsor,  1K()(»,  8  H.  I>.  Ca.  .'{(»(), 
Lfird  Campbell  treated  //.  v.  A/ilti^ uh  an  authority  l>inding  on  the  House, 
t)iou;;h  it  was  decided  in  a  case  of  ecjualily  of  votes  by  the  hi-Ip  of  the 
maxim  "  pni  niimitur  pro  ncgante "  ;  liut  I  <binbt  whitlur  tliis  would 
ajiply  to  /.'.  V.  A'hwill,      The  ("ourt  lieing   e(|ually    divi<bd    no   judgment 


262  A   DIGEST  OF 


(2.)  ^  A  gives  a  cabman  a  sovereign  for  a  sliilling.  The  cab- 
man, seeing  that  it  is  a  sovereign,  keeps  it.  This  is  tlu'Ft  of  tlie 
sovereign.  If  he  does  not  discover  the  mistake  at  once,  but 
subsequent!}',  it  is  doubtful  whetlier  he  commits  theft  or  not. 

(3.)  -  A  receives  a  letter  containing  a  cheque.  The  letter  is 
addressed,  and  the  cheque  is  payable,  to  another  person  of  the 
same  name  as  A.  A  receives  the  letter  innocently,  but  on  dis- 
covering the  mistake  made  converts  the  cheque  to  his  own  use. 
This  is  not  theft. 

(4.)  ■"*  A  buys  a  bureau  at  a  public  auction,  and  finds  in  it 
property  not  intended  to  be  sold,  which  he  converts  to  his  own 
use.     This  is  theft. 

Article  326. 
theft  1!y  bailees. 

*  Theft  may  be  committed  by  the  conversion  by  a  bailee  of 
the  thing  bailed,  but  this  does  not  extend  to  any  offence 
punishable  on  summary  conviction. 

^  This  article  applies  to  bailments  to  infants  inca})able  of 
entering  into  a  contract  of  bailment  by  reason  of    infancy 


was  given,  ami  therefore  the  conviction  was  not  quashed,  but  I  do  not  see 
what  more  can  be  said.  Tlie  maxim  "  i)nKSumitur  pro  negaute,"it  might 
surely  be  argued,  would  apjjly,  if  at  all,  to  the  view  which  negatived 
Ashwell's  guilt.  For  myself  I  doubt  its  ajjplication  to  the  case.  On  the 
whole  there  is  strong  evidence  of  the  cori-ectness  of  my  opinion  that  the 
matter  is  doubtful,  and  I  have  accordingly  left  my  statement  as  it  was. 

'   Per  eight  Judges,  in  A*,  v.  Middltton,  187-,  -  C.  C.  R.  at  ]).  45. 

-  li.  v.  Muckloa;  1841,  1  Moo.  C.  C.  ItiO  ;  /.'.  v.  X>«c(>.s,  ISiKi,  1).  &  P. 
640. 

^  Merry  v.  Green,  1 841,  7  M.  &  W.  G23.  There  was  a  (juestion  in  this 
case  whether  the  bureau  was  not  sold  with  its  contents.  Curtu-rujlit  v. 
Gretn,  1803,  8  Ves.  405,  is  also  precisely  similar.  I  am  luiable  to  distin- 
guish these  cases  from  those  on  which  Illustration  (3)  is  founded.  It  is 
remarkable  that  in  the  judgments,  and  apparently  in  the  argument  (which 
is  not  reported),  in  K.  v.  Mii/d/t/on,  no  notice  is  taken  of  any  of  these  cases, 
nor  are  the  cases  about  the  bureaus  referred  to  in  li.  v.  Daries,  which  was 
decided,  without  argument,  solely  on  the  authority  of  7i'.  v.  Mvcklov;. 
Carficright  v.  Green  is  not  referred  to  in  K.  v.  Muclclow,  which  was  decided 
before  Merry  v.  Green.  Merry  \.  Green  does  not  refer  to  R.  v.  Murklou:. 
The  result  is  that  the  cases  appear  to  contradict  each  other.  This  is  also 
the  view  of  Mr.  Justice  Cave  in  his  judgment  in  R.  v.  Ashwell. 

•'  24  &  25  Vict.  c.  96,  s.  3.  For  an  instance  of  this  offence,  see  li.  v. 
Oxenham,  1876,  46  L.  J.  (M.  C.)  125.  For  a  case  in  which  it  was 
doubtful  whether  or  not  there  was  evidence  of  a  bailment,  see  11.  v.  De 
Hants,  1884,  13  Q.  B.  D.  29.     See  also  B.  v.  Ashivell  supra. 

"  Ji.  v.  MacDoncdd,  1885,  15  Q.  B.  D.  323. 


THE   CRIMINAL   LAW  263 

[and  it  is  submitted  to  bailments  upon   a  void,  and  perhaps 
upon  an  illegal,  consideration]. 

Article  327. 
by  and  from  whom  theft  may  1$e  committed. 

Theft  may  be  committed  by  a  general  owner  to  the  pre- 
judice of  a  special  owner  upon  a  chattel  in  which  both 
general  and  special  ownerships  exist. 

^  Theft  may  be  committed  by  a  member  of  a  -  co-partner- 
ship, or  by  one  of  two  or  more  beneficial  owners  of  any  money, 
goods,  effects,  bills,  notes,  securities,  or  other  property,  to  the 
prejudice  of  the  other  co-partners  or  beneficial  owners. 

^  Theft  may  be  committed  by  a  member  of  a  corporation  to 
the  prejudice  of  that  corporation  upon  a  thing  which  is  the 
property  of  the  corporation. 

■*A  married  woman  cannot  (^so  long  as  she  lives  with 
her  husband)  commit  theft  upon  things  belonging  to  her 
husband. 

If  any  other  person  assists  a  married  woman  ("  living 
with  her  husband)  in  dealing  with  things  belonging  to  her 
husband  in  a  manner  which  would  amount  to  theft  in  the 
case  of  other  persons,  ^  such  dealing  is  not  theft  "  unless  the 
per-son  so  assisting  commits  or  intends  to  commit  adultery 
with  the  woman,  **  in  which  case  he,  but  not  she  (•''  unless  she 

'  \\\  &  32  Vict.  c.  116,  s.  1. 

-  A  co-partnership  iiieans  an  association  for  profit.  A  Christian  Young 
Men's  Sfjciety  is  not  a  co-partnersliii),  though  its  members  may  be  joint 
beneficial  owiiers.      li.  v.  Roh.son,  ISSiJ,  1(5  Q.  V>.  D.   140. 

^  Roscoe's  Crim.  Ev.  1 1  tli  ed.  (i.S9.  This  is  Mr.  Roscoe's  inference 
from  Hale,  P.  C.  513,  and  appears  to  l)e  correct. 

«    1  Hale,  P.  C.  514. 

•''  Tliese  parentheses  seem  to  be  required  since  45  &  46  Vict.  c.  7"),  s.  12 
(the  Murriu<l  Womans  Property  Act  1882).  See  Article  rU  I ,  and  /.'.  v. 
JunuA  [19(12],  1  K.  15.  540. 

«  Jlarrvvni'n  Cu,i< ,  1756,  2  Kast,  P.  C.  539. 

'    l{.  V.  Avti-y,   1S59,  liell,   15(1. 

"  II.  V.  Tol/r,<,  1H29,  .Mood.  243  ;  II.  v.  Thompson,  1850,  1  Den.  549; 
li.  V.  TolUlt,  1841,  (Jar.  and  .Mar.  112;  li.  v.  Fialhi-.tlom-,  1854,  \h  k  P. 
369  ;  II.  V.  //.  MnllirH,  1865,  L.  &  ( ".  511.  A  note  to  tills  cuse,  510-19, 
(.olIectM  anil  reviews  all  thi;  anthoritieH  on  the  subje(;t.  These  ciihch  were 
all  decided  l>efore  the  .Muriird  WtiinaMs  I'rupcity  Act  45  and  16  \'ict.  c. 
75,  HH.   12,  16. 


264  A    DtGBSr  OF 


intends  to  desert  her  husband),  commits  theft.  ^  But  this 
exception  does  not  apply  to  the  case  of  an  adulterer  or 
person  intending  to  commit  adultery,  who  assists  a  married 
woman  to  carry  away  her  own  wearing  apparel  only  from  her 
husband. 

2  It  is  doubtful  whether  the  mere  presence  and  consent  of 
a  married  woman  on  an  occasion  when  some  person  deals 
with  her  husband's  goods  in  a  way  which  would  otherwise 
amount  to  theft  excuses  such  person  if  he  acts  as  a  principal 
in  the  matter,  and  not  as  her  assistant. 

Illustrations. 

.  (1.)  ^  A  bails  goods  to  B  for  exportation,  upon  which  A  would 
become  entitled  to  an  exemption  from  a  duty  on  the  goods  of 
2s.  6rf.  a  pound.  B  gives  a  bond  to  the  Crown  for  exportation, 
and  wends  the  goods  in  his  barge  to  a  ship  to  be  exported.  A, 
to  get  the  goods  duty  free,  takes  them  from  ]>'s  barge.  A  has 
stolen  the  goods  from  B,  and  it  seems  it  would  have  been  larceny 
if  no  bond  had  been  given  by  B. 

(2.)  "*  A  gives  his  servant  goods  to  carry  to  a  certain  place. 
A  then  disguises  himself  and  robs  his  servant  in  order  to 
charge  the  hundred  with  the  robbery.     This  is  robbery. 


Article  328. 

^finding  goods. 

A  finder  of  lost  goods  who  converts  them  commits  theft 
if  at  the  time  when  he  takes  possession  of  them  he  intends 

1  B.  V.  Fitch,  1857,  D.  &  B.  187. 

2  /?.  V.  Avery,  1859,  Bell,  153.  I  submit  that  the  wife's  presence  and 
consent  in  such  a  case  would  be  no  excuse.  See  the  histor}^  of  the  growth 
of  the  doctrine  in  the  note  to  B.  v.  Mutters. 

3  B.  V.   Wilkinson,  1821,  2  Russ.  Cr.  243,  R.  &  R.  470. 

"*  Foster,  123-4.  I  have  not  met  witli  anj'  case  in  which  a  man  has 
been  convicted  of  theft  for  stealing  a  pledge  (his  own  property)  from  a 
pawnbroker  ;  but  no  doubt  such  an  act  would  be  theft.  Before  31  &  32 
Vict.  c.  116,  s.  1,  a  case  occurred  in  which  a  part  owner  was  convicted  of 
stealing  money  from  another  part  owner,  in  whose  special  custody  it  was, 
and  who  was  solely  responsible  for  its  safetj-,  the  monej-  being  the  property 
of  a  co-operative  store  :  B.  v.  Wehsttr,  1861,  L.  &  C.  77.  The  same  point 
was  decided,  as  to  the  property  of  a  friendly  society,  in  B.  v.  Bnnjess, 
1863,  L.  &  C.  299. 

s  3  Hist.  Cr.  Law,  170. 


THE   CRIMINAL   LAW  265 

to   convert    them,  knowing  who  the    owner    is,    or    having 
reasonable  grounds  to  believe  that  he  can  be  found  ; 

Such  a  conversion  is  not  theft 

(a.)  if  at  the  time  when  the  finder  takes  possession  of 
the  croods  he  has  not  such  knowledge  or  grounds  of  belief 
as  aforesaid,  although  he  acquires  them  after  taking  posses- 
sion of  the  goods,  and  before  resolving  to  convert  them  ;  or 

(//.)  if  he  does  not  intend  to  convert  the  goods  at  the  time 
when  he  takes  possession  of  them,  whether  he  has  such 
knowledge  or  grounds  of  belief  or  not  at  any  time. 

If  the  circumstances  are  such  as  to  lead  the  finder  reason- 
ably to  believe  that  the  owner  intended  to  abandon  his 
proj^erty  in  the  goods,  the  finder  is  not  guilty  of  theft  in 
converting  them. 

Illustrations. 

(1.)  ^  A  finds  a  bank-note,  accidentally  dropped  on  the  floor  of 
liis  shop.  He  picks  it  up,  intending  to  keep  it  for  himself,  who- 
ever the  owner  may  be,  believing  at  the  time  that  the  owner 
could  be  found.      This  is  theft. 

(2.)  -  A,  a  carpenter  to  whom  a  bureau  was  intrusted  to 
mend,  finds  money  in  it,  the  existence  of  which  was  obviously 
unknown  to  the  owner  of  the  bureau.  A  appropriates  the 
money.  This  is  theft,  as  A  knew  to  whom  the  bureau  be- 
longed. 

(3.)  "^  A  finds  iron  in  the  bottom  of  a  canal,  from  wliich  the 
water  has  been  let  off,  and  appropriates  it.  This  is  theft,  as  the 
fact  that  the  iron  was  in  the  canal  raised  a  presumption  that  it 
had  fallen  from  a  canal  boat,  and  that  tiierefure  the  canal 
company  had  a  special  property  in  it. 

(A.)  *  A  finds  a  sovereign  in  the  road,  and  picks  it  up,  intend- 
ing to  keep  it,  whoever  the  owner  may  be,  but  not  knowing 
who  he  is,  and  liaving  no  reason  to  believe  he  could  !>(»  found. 
This  is  not  theft. 

(5.)  ^  A  finds  a  hank-note  in  the  road,  with  no  mark  upon  it, 
;uid   no  circumstance   to  indicate  who  is   the  owner,  ur  that  he 

'    /.'.  V.  Moort,  1801,  L.  &  C.  1. 

-  ('ariin-i'fht   v.  firiin,  1S0.3,    S    Ves.    40.');  sec,    tiM>,    Miny    v.    (Ircen, 

1H41, 7  .M.  &  \v.  m:i. 

^  /■'.  V,  lliiii-i-,  1H.')'J,  IJt'Il,  C.  C.  93.  Tliis  ciiHc  wiiH  (IcciihMl  on  tlie 
(jticMtiuii  «»f  tlie  p<m«eHHioii  i)f  tlic  <unal  coiniiuiiy,  hut  it  ilUihtratoM  tliu 
priiii'i|>Ic!  of  fiiiilin;^  also. 

«   /.'.  V.  fllijtl,,  iHliS.   I  ('.  (*.   K.    VM). 

■■•   /.'.  V.   Thiirhoni,  1K»!»,   I   Din.  .SH7. 


26  G  A    D I  a  EST   OF 


might  be  found.  Next  day  he  hears  who  the  owner  is,  and  after 
that  changes  ihe  xuAv  ami  kefjis  (he  money.  This  is  not 
theft. 

(G.)  ^  A  liiids  a  hiuii'C-notc  in  tlie  i-oad  with  the  owner's  name 
upon  it,  and  takes  it,  intending  at  the  time  to  return  it  to  tlie 
owner,  but  afterwards  changes  his  mind  and  keeps  it  for  himself. 
This  is  not  theft. 

(7.)  ^  A  finds  an  apple,  which  appears  to  have  been  thrown 
away  in  a  road,  and  eats  it.  If  A  reasonabl}'  believes 
that  the  apple  had  been  abandoned  by  its  owner,  this  is  not 
theft. 


Article  829. 

conversion  after  a  taking  amounting  to  trespass. 

If  a  person  takes  into  his  custody  any  chattel  belonoing  to 
any  other  person  in  a  way  which  constitutes  an  actionable 
wrong  to  that  person  and  afterwards  converts  it,  he  commits 
theft,  although  he  may  not  have  intended  to  convert  it  when 
he  took  it  into  his  custody. 

Illustrations. 

(1.)  ^  A,  having  a  flock  of  lambs  in  a  field,  drives  them  out, 
and  negligently  drives  away  with  them  a  lamb  belonging  to  B 
which  happens  to  be  there.  At  the  time  of  driving  away  the 
lamb  A  does  not  intend  to  convert  it,  but  afterwards,  on  dis- 
covering what  has  happened,  he  sells  the  lamb  and  keeps  the 
money.      This  is  theft. 


^  Preston's  Cane,  1851,  2  Den.  353.  The  illustration  does  not  represent 
the  actual  facts  in  Pre-stoiCs  Case,  but  a  state  of  facts  which  the  Court 
said  might  have  existed  and  upon  which  the  jury  might  liave  convicted 
him  under  the  terms  in  which  the  very  able  judge  who  tried  the  case  (the 
late  M.  I).  Hill,  Recorder  of  Bii'mingham)  directed  them. 

2  Per  Rolfe,  B.,  in  li.  v.  Peters,  1843,  I  C.  &  K.  245;  and  see  the 
summing  up  of  Cockburn,  C.J.,  in  7i*.  v.  Clyde,  1868,  1  C.  C.  R.  140-1. 
In  some  of  the  cases  on  this  subject  a  distinction  is  taken  between  property 
absolutely  lost  and  property  only  mislaid  ;  see  li.  v.  West,  1854,  U.  &  P. 
402.  It  would  appear,  however,  that  the  only  real  difference  is  that  in 
the  latter  case  the  tinder  must  know  that  the  owner  may  be  found.  The 
distinction  was  useful  as  a  step  towards  modifying  the  generality  of  the 
rule  laid  down  by  the  old  text  writers:  see  e.g.  1  Hawkins,  P.  C.  142. 
"  One  who  finds  such  goods  as  I  have  lost,  and  converts  them  to  his  own 
use,  animo  furandi,  is  no  felon." 

3  B.  V.  Riley,  1853,  D.  &  P.  149. 


THE    CRLMISAL    LA]V  267 

(2.)  ^  A  takes  home  B's  umbrella  from  a  club  by  mistake,  and 
having  afterwards  found  out  that  it  is  B's,  converts  it.  A 
commits  theft. 

Article  330. 

conversion  after  innocent  taking. 

If  a  person  innocently  in  any  way  not  referred  to  in 
any  of  the  preceding  Articles  has  the  possession  of  any 
chattel,  and  converts  snch  chattel,  he  does  not  commit  theft, 
although  such  chattel  may  have  been  intrusted  to  him 
by  the  owner,  or  may  be  the  proceeds  of  something  which 
was  intrusted  to  him  by  the  owner  for  the  owner's  benefit, 
ur  for  the  benefit  of  some  person  other  than  the  person  so 
intrusted,  unless  such  conversion  falls  within  the  provisions 
of  Chapter  XLII.  or  Article  335.  Such  conversion,  if 
fraudulent,  is  a  statutorj'  misdemeanour  by  the  Larceny 
Act  1902. 

lUustratioiis. 

(1.)  -  A  assigns  his  goods  by  deed  to  trustees  for  the  benefit 
of  his  creditors.  The  trustees  do  not  take  possession,  but  leave  A's 
possession  undisturbed.  A  makes  away  with  the  goods,  intend- 
ing to  deprive  his  creditors  of  them.     This  is  not  theft. 

(2.)  ^  B's  house  being  on  fire,  A  takes  B's  goods  to  A's  house  for 
protection,  B  acquiescing  as  to  some  of  them.  A's  intention  at 
the  time  is  to  keep  them  for  B,  but  A  afterwards  changes  his 
mind  and  converts  them.     Tliis  is  not  tlieft. 

(3.)  *  B  gives  his  broker  A  a  cheque  to  buy  E.xchequer  bills. 
A  buys  Exchequer  bills  for  B  with  part  of  the  proceeds  of  the 
(lieque  and  absconds  with  the  rest.  This  is  not  theft,  but  is  a 
niisdemeantjur  under  the  Larceny  Act  190L 


'  Per  Pollock,  C.B.,  and  Parke,  B.,  in  liiley'n  Case,  at  p.  hlG  ;  see  tlie 
•juestion  of  Martin,  B.,  in  Pre-ston'n  Cane,  1851,  2  Dtn.  .S.")!l. 

-  ]{.  V.  rrnit,  18.")4,  Dear.  .SOU. 

•'  Liiijh'x  CoHt',  ISOIJ,  2  Ka.4t.  P.  C.  694-.'i.  Tiii-s  case  8tLiii.s  to  show 
tliat  if  A  were  to  find  a  hank-note  for  £1,00(1,  which  he  knew  to  he  B's, 
and  were  to  take  it  uj)  intending  to  give  it  to  B,  an<l  were  aftei'wards  to 
t»e  templed  to  go  to  a  gaming  hoiiHe,  and  weie  tliere  to  stake  and  lose  it, 
he  Would  not  commit  theft,  and  I  helieve  that  sucli  Ih  tlie  law. 

*  WulMh'H  CiLHi ,  lSi'2,  2  Lea.  I()a4.  Wuhh'x  Cati  was  the  occasion  of 
the  fust  of  a  series  of  slatutcB  now  represented  hy  24  &.  lio  \'ict.  c.  J)(j,  ss. 
77  70,  and  I  K<lw.  7,  c.  Ht,  whidi  repeals,  and  is  "  deemed  to  he  sub8titute<l 
for,"  ss.  7'»,  7<J  of  tlittt  Act.      .See  jioni,  Chapter  XLIL 


268  A    DIGEST   OF 


(4.)  ^  B,  a  boy  unable  to  read,  finds  a  cheque  and  gives  it  to  A, 
asking  A  to  tell  him  what  it  is.  A,  on  various  false  pretences, 
witliliokls  it  from  B  in  hopes  of  getting  a  reward  from  the  owner. 
A  has  not  stolen  the  cheque. 

(5.)  "  A,  the  acting  treasurer  of  a  local  Church  Missionary 
Society,  whose  duty  it  is  to  deposit  or  invest  the  moneys  r(>ceived 
by  him  on  account  of  the  society,  converts  them.  This  is  not 
theft,  but  is  conversion  under  the  Larceny  Act  1901. 

(6.)  ^  A  is  the  treasurer  of  a  money  club,  the  nature  of  which 
is  tliat  certain  persons  deposit  a  weekly  sum  and  are  lialjle  to 
lines  in  default.  Loans  may  be  made  on  interest  to  the 
members  at  A's  discretion.  The  total  amount,  including  interest 
on  the  loans,  but  subject  to  small  deductions,  to  be  divided 
amongst  the  members  at  the  end  of  the  year.  A  converts  the 
balance  in  his  hands  at  the  end  of  the  year.  This  is  not 
theft. 

Article  331. 

obtaining  15y  false  pretences  not  theft. 

It  is  not  theft  to  persuade  any  person  by  fraud  to  transfer 
the  property  of  any  chattel  to  any  person,  though  such  an 
act  may  be  an  offence  under  Chapter  XLI. 

Article  332. 

temporary  taking  is  not  theft. 

"^It  is  not  theft  to  deal  with  anything  in  any  of  the  ways 
in  which  theft  can  be  committed  with  the  intention  only  to 
obtain  the  temporary  use  thereof,  and  not  with  the  inten- 
tion to  convert  it  permanently  to  the  use  of  some  person 
other  than  the  owner;  but  if  a  thing  is  so  dealt  with 
with  the  intention  of  totally  depriving  the  owner  of  his 
property  in  it,  the  returning  of  the   goods  after  a  tempo- 

1  /?.  V.  Gardner,  1862,  L.  &  C.  243. 

-  R.  V.  Gm-rett,  1860,  8  Cox,  C.  C.  .368,  and  2  Russ.  Cr.  136-7.  As 
the  offender  had  not  to  pay  over  or  return  the  specific  coins  intrusted  to 
him,  he  was  not  a  bailee  ;  and  as  there  was  no  express  trust  of  the  monej' 
created  Ijy  an  instrument  in  writing  lie  was  not  within  the  fraudulent 
trustee  clauses  of  the  Larceny  Act. 

^  Nor  was  it  any  offence  at  all,  previously  to  1  Kdw.  7  ;  c.  1 0.  R.  v. 
Ha-^sell,  1861,  1  L.  &  C.  58. 

*  See  Illustrations,  and  for  the  latter  part  of  the  Article  note  to  R.  v. 
Phetheon,  1840,  9  C.  &  P.  554,  and  R.  v.  Trehilcock,  1858,  D.  &  B.  453. 


THE    CRIMIXAL    LAW  269 

rary  use  of  them  will  not  prevent  the  act  from  amounting 
to  larceny. 

Illustrations. 

(1.)  ^  A  takes  B's  horse  without  B's  leave,  rides  about  ou  it  to 
find  some  cattle,  and  then  turns  it  loose  on  the  common.  This 
is  not  theft. 

(2.)  -  A  rides  B's  horse,  without  B's  leave,  to  a  place  thirty 
miles  off,  and  leaves  him  at  an  inn,  saying  he  will  call  for  him. 
A  does  not  call  for  the  horse,  but  pursues  his  journey  on  foot. 
The  jury  must  consider  whether  A  meant  permanently  to 
deprive  B  of  his  horse,  or  only  to  make  that  particular  journey 
on  him.  In  the  first  case  A's  act  is  theft ;  in  the  second, 
not. 


Article  333. 

taking  tame  animal  wandering  not  theit. 

^  It  seems  that  it  is  not  theft  to  take  and  carr}^  away  an 
animal  which,  though  really  tame,  is  wandering  at  a  dis- 
tance from  its  habitation  as  if  it  were  wild,  and  when  it  is 
not  known  to  be  tame  by  the  person  who  takes  and  carries 
it  away. 

Article  334. 
evidence  as  to  theft. 

The  inference  that  jiroperty  alleged  to  have  been  stolen 
h;is  in  fact  been  stolen  may  be  drawn  from  other  facts  than 
the  fact  that  it  is  identified  by  a  witness. 

The  inference  that  an  accused  person  has  stolen  pinpcity 
or  has  received  it  knowing  it  to  be  stolen,  may  be  drawn 
from  th<.'  fact  that  it  is  found  in  his  [)o.ssession  after  being 
stolen,  and  that  h<;  gives  no  .satisfactory  account  of  the  way 
in  wlijch  it  came  intrj  his  jxw.scssion. 

'    I   Ifalit,  I'.  C.   'lOU. 

-  II.  V.  1'hUlip.H,  1801,  1  KuHl,  I'.  ('.  tiliJ  ;  /.'.  V.  Addis,  18  Jl,  I  Cox, 
('.  ('.  7H,  in  U>  the  Manie  efFect. 

3   1   HawkiiiH,  P.  C.  p.   149,  ch.   19,  s.  40. 


270  A    DIGEST   OF 


Illustration. 

^  A  is  seen  coming  out  of  ;i  lower  room  in  a  warehouse  in  the 
London  Docks,  in  the  floor  above  which  a  quantity  of  pepper  is 
deposited,  some  being  loose  on  the  floor.  A's  pockets  are  full 
of  pepper.  On  being  stopped  he  throws  down  the  pepper,  and 
says,  "  I  hope  you  will  not  be  hard  upon  me."  A  may  be  con- 
victed of  stealing  the  pepper,  although  no  pepper  was  missed 
from  the  warehouse,  and  the  pepper  on  A  was  not  otherwise 
identified  than  by  being  shown  to  be  similar  to  that  in  the 
warehouse. 

1  L\  V.  Burton,  185.S,  I).  &  P.  282.  In  this  case,  Maule,  J.,  cliaracter- 
istically  I'emarked,  "  If  a  man  go  into  the  London  Docks  sober,  without 
means  of  getting  di'iink,  and  comes  out  of  one  of  the  cellars  very  drunk, 
wherein  are  a  million  gallons  of  wine,  I  think  that  would  be  reasonable 
evidence  that  he  had  stolen  some  of  the  wine  in  that  cellar,  tliough  you 
could  not  prove  that  any  wine  was  stolen,  or  any  wine  was  missed." 

As  to  the  rule  as  to  recent  possession  of  stolen  goods,  many  cases  have 
been  decided  on  the  subject  (see  2  Russ.  Cr.  27o-28.S),  but  they  seem  to 
me  to  come  to  nothing  but  this,  that  ever^^  case  depends  on  its  own 
circumstances,  and  that  the  nature  of  the  thing  stolen,  the  length  of  the 
interval  between  the  theft  and  the  possession,  and  the  behaviour  of  the 
accused  may  all  vary  the  force  of  the  evidence  indefinitely.  The  unex- 
plained possession  of  a  single  stolen  coin  by  a  shopkeeper  doing  a  large 
business,  in  whose  till  it  was  found  ten  minutes  after  the  theft,  would 
prove  nothing.  The  finding  of  a  lost  will  ten  years  after  its  loss,  locked 
up  in  the  strong  box  of  a  careful  person  deeply  interested  in  its  temporary 
concealment,  and  peculiarly  jealous  of  his  strong  box,  would  prove  a  great 
deal.  Between  these  extremes  there  may  be  infinite  degrees  in  the  weight 
of  such  evidence. 


THE    CRIMIXAL    LAW  271 


CHAPTER  XXXVII 

i  embezzlemext  by  clerks  axd  servaxts 

Article  335. 

embezzlement  bv  clerks  and  servants — who  are 
servants. 

-  When  a  clerk  or  servant,  or  person  employed  in  the 
capacity  of  a  clerk  or  servant,  commits  theft  by  converting 
any  chattel,  money,  or  valuable  security  delivered  to  or 
received,  or  taken  into  possession  by  him  for  or  in  the 
name  or  on  account  ^  of  his  master  or  employer,  his  offence 
is  called  embezzlement. 

Such  a  conversion  is  not  a  criminal  offence  (except  in  the 
cases  hereinafter  specially  provided  for)  unless  the  person 
who  converts  stands  to  the  owner  of  the  propertj'  converted 
in  the  relation  of  a  clerk  or  servant,  or  person  employed  in 
the  capacity  of  a  clerk  or  servant. 

*  It  is  a  question  for  a  jury  whether  a  person  accused  of 
embezzlement  is  a  clerk  or  servant  or  not. 

^  A  clerk  or  servant  is  a  person  bound  either  by  an  ex- 
press contract  of  service  or  by  conduct  ^  implying  such  a 
contract  to  obey  the  orders  and  submit  to  the  control  of  his 
master  in  the  transaction  of  the  business  which  it  is  his 
duty  as  such  clerk  or  servant  to  transact. 

A  man  may  be  a  clerk  or  servant 

^  although  he  was  appointed  or  elected  to  the  employ- 

•  3  Hist.  Cr.  Law,  L51-6.     Cf.  Draft  Code,  ss.  249,  250,  2i58. 
■■^  Founrlcd  on  24  &  2.")  Vict.  c.  96,  s.  68.     See  Art.  351  (h). 

^  For  an  instance  in  which  money  was  received  in  tlie  name  of  one 
person  and  on  the  account  of  anotlier,  see  R.  v.  Thorpe,  1858,  1).  &,  H. 
362. 

*  Hramwell,  JJ.,  douhtcd  as  to  this  in  WnJkers  Caxe,  1858,  D.  &-  B.  at 
p.  602;  hut  see  R.  v.  AVj/jm,  1H73,  2  C.  C.  R.  34;  R.  v.  TUe„  1861, 
L.  &.  C.  29  ;   R.  v.  Afay,  1861,  L.  &  C.   13. 

'•  R.  V.  Xefjwi,  Bup.  at  p.  37  (judgment  of  Blackl)urn,  .1.)  ;  R.  v,  Ti/f, 
■up.  at  p.  33. 

•'  R.  V.  Fmdkfji,  1875,  2  C.  C.   \i.   ).-)2. 
'   IlIuHtration  (1). 


272  A   DIGEST   OF 


inent  in  respect  of  whicli  lie  is  a  clerk  or  servant  by  some 
other  person  than  the  master  whose  orders  he  is  Ijound  to 
obey ; 

^  althuug-h  he  is  paid  tor  his  services  by  a  commission  or 
share  in  the  profits  of  a  business ; 

2  although  he  is  a  member  of  any  co-partnership,  or  is 
one  of  two  or  more  beneficial  owners  of  the  '■'  property 
embezzled  ; 

•*  although  ho  is  a  director  of  a  com})any  which  he 
serves ; 

^  although  he  is  the  clerk  or  servant  of  more  masters  than 
one ; 

''  although  he  acts  as  clerk  or  servant  only  occasionally, 
or  only  on  the  particular  occasion  on  which  his  offence  is 
committed. 

"  But  an  agent  or  other  person  who  undertakes  to  transact 
business  for  another,  without  undertaking  to  obey  his  orders, 
is  not  necessarily  a  servant 

because  he  receives  a  salary,  or 

because  he  has  undertaken  not  to  accept  employment  of  a 
similar  kind  from  any  one  else,  or 

because  he  is  under  a  duty  (statutory  or  otherwise)  to 
account  for  money  or  other  property  received  by  him. 

^  It  seems  that  in  order  that  a  clerk  or  servant  may  be 
within  the  meaning  of  this  Article  it  is  necessary  that 
the  objects  of  his  service  should  not  be  criminal,  but  a 
man  may  be  such  a  clerk  or  servant  although  the  objects 
of  his  service  are  in  part  illegal  as  being  contrary  to  public 
policy. 

1  Illu.strations  (2)  and  (3). 

2  31  &  32  Vict.  c.  116,  s.  1. 

■*  "  Money,  goods,  or  efl'ects,  bills,  notes,  or  securities,  or  other  pro- 
perty. " 

*  Illustration  (4). 

s  Illustration  (3). 

*>  Illustration  (5). 

7  Illustrations  (7),  (11),  (12),  (14),  (15). 

*<  Illustrations  (15),  (16). 


THE    CRIMIXAL    LAW  L'73 


U  lustrations. 

(1.)  ^  A,  elected  collector  of  rates  by  the  vestry  of  a  parish, 
and  having  to  obey  a  committee  of  management,  is  the  servant 
of  the  coramittee  of  management. 

(2.)  -  A  was  cashier  and  collector  to  B  at  a  salary  of  £150  a 
year,  besides  12i  per  cent,  on  the  profits  of  the  business.  A 
was  not  to  be  responsible  for  losses,  and  had  no  control  over  the 
management  of  the  business.     A  was  servant  to  B. 

(3.)  ^  A  took  orders  for  B  and  collected  money  for  him  according 
to  a  journey  book  given  to  him  by  B,  showing  the  sums  to  be 
received  and  the  persons  from  whom  they  were  due.  A  was 
paid  by  a  commission.  A  was  clerk  to  B,  though  he  was 
principally  employed  by  C,  D,  and  others. 

(4.)  *  A,  a  director  of  S.  tk  Co.  (Limited),  canvassed,  supei'- 
intended  bill-posting  for  the  company,  collected  money  due  to 
tliem  and  paid  it  over  to  the  cashier.  A  was  the  servant  of 
8.  <fe  Co.  (Limited). 

(5.)  ^  A  was  employed  by  B  to  go  on  messages  when  A  had 
nothing  else  to  do,  and  B  was  to  give  A  whatever  B  chose.  A 
was  B's  servant. 

(6.)  ^  A,  a  drover,  was  employed  by  B,  a  farmer,  on  one  single 
occasion  to  drive  a  cow  and  calf  to  a  person  to  whom  they  were 
sold,  and  to  bring  back  the  money.      A  was  B's  servant. 

(7.)  "  A,  the  master  of  a  charity  school,  on  one  particular 
occasion  consents  to  get  a  subscription  to  the  funds  of  the 
school,  at  the  request  of  B,  the  treasurer  of  the  committee  of 
management  by  which  A  was  appointed,  and  which  managed 
the  school.  It  was  no  part  of  A's  duty  as  master  to  collect  any 
subscriptions.  In  getting  the  subscription  A  was  not  the 
servant  of  B. 

(8.)  ^  A,  a  drover,  is  employed  by  B,  a  grazier,  to  drive  oxen 


'  n.  V.  Callahan,  1837,  8  C.  &  P.  \~A.  See  now  12  &  13  Vict.  c.  103, 
B.  1.5,  which  api)Iies  also  to  assistant  overseer.s  ;  li.  v.  Cullnm,  1873, 
•_'  C.  C.  H.  29  ;  and  see  //.  v.  Jeiisoii,  183."),  1  Moo.  C.  C.  434. 

-  M'Doufdd'it  CVwe,  1861,  L.  &  C.  85. 

•'  /(*.  V.  Carr,  1811,  R.  &  R.  198.  A  ilouht  was  expressed  as  lo  I  he 
last  jwiint  referred  to  in  this  Illustration  in  //.  v.  (loodboily,  1838,  8  C.  & 
I'.  ««.",;  hut  n.  V.  lialty,  1842,  2  Moo.  C.  C.  2')!,  an<l  It.  v.  Till,  18(il, 
L.  it  C.  29,  n[)liold  II.  v.  (Jarr  and  recognise  tlie  principle  that  a  man  may 
\ni  servant  to  several  persons  at  once. 

<   H.  v.  Sliiarl,  1894,  I  g.  H.  310. 

•'•   i:.  v.  S,„Mcer,  181. -5,  R.  &  \i.  299. 

'-  /{.  V.  Ilinih-s,  I8;{2,  .Moo.  (,".  (;.  370. 

■   l{.  V.  X'l/fefoii,  1830,  1  Moo.  C.  (1  2.')9. 

»  /{.  V.  (IoihIIxxIij,  1838,  8  (;.  k  V.  (Hio.  The  dilFerence  hetwccn  this 
(•.■i.s<-  mid  It.  V.  JIuijIiLn  in  IlluHtrution  ((S)  li<H  in  (he  |iuw('r  of  sale. 

T 


274  A    DIGEST   OF 


to  London,  to  sell  them  on  the  road,  if  possible,  and  to  take 
those  reniaiiiiiiii;  unsold  to  ;i  salesman  in  Sniitlifield.  A  is  not 
B's  servant. 

(9.)  ^  B  engaged  A,  who  kept  a  refreshment  liouse  at  Birken- 
head, to  get  orders  for  manure  manufactured  by  B.  A  was  not 
bound  to  give  any  definite  amount  of  time  or  labour  to  the 
purpose.  The  manure  was  sent  to  stores  under  A's  control, 
of  which  he  was  tenant,  though  B  paid  the  rent,  and  was 
forwarded  by  A  to  the  customers.  A  was  paid  £1  a  year  salary 
and  a  commission.     A  was  B's  agent,  not  his  servant. 

(10.)  ^  A  is  employed  by  B  to  get  orders  and  collect  money 
when  and  where  he  thinks  proper  ;  A  is  not  B's  servant. 

(11.)  ^  A  was  engaged  b}^  B  to  solicit  orders.  He  was  to  be 
paid  by  commission.  He  was  at  liberty  to  apply  for  orders 
whenever  he  thought  most  convenient,  but  was  not  to  employ 
himself  for  any  other  person  than  B.     A  was  not  B's  servant. 

(12.)  ^  The  treasurer  of  a  friendly  society  under  18  &  19 
Vict.  c.  63  is  not  the  servant  of  the  trustees  of  the  society, 
though  by  sect.  22  he  is  bound  before  seven  days  after  being 
required  by  the  trustees  (in  whom  the  money  is  invested  by  sect. 
1 8)  to  account  to  the  trustees. 

(13.)  ^  A  parish  clerk  is  not  a  servant,  because  he  is  not  under 
the  orders  of  any  particular  person. 

(14.)  ^  The  chamberlain  of  the  commons  of  a  corporation 
chosen  and  sworn  in  at  a  court,  but  whose  duty  it  is  to  super- 
intend the  connnons  and  to  receive  certain  duties  which  he  kept 
till  the  end  of  the  year,  when  his  accounts  were  audited  and  the 
balance  paid  over  to  his  successor,  is  not  a  servant,  because  he 
holds  a  distinct  office,  and  is  not  bound  to  pay  at  any  time. 

(15.)  '^  The  servant  of  a  trade  union  may  be  convicted  of  the 


1  R.  V.   Walker,  1858,  D.  &  B.  600. 

2  R.  V.  Bowers,  1866,  1  C.  C.  R.  41,  and  />'.  v.  Harris,  1893,  17  Cox 
C.  C.  656. 

3  B.  v.  jSTerjns,  1873,  2  C.  C.  R.    34. 

*  B.  v.  Tyree,  1869,  1  C.  C.  R.  177.  A  treasurer  would  appear,  as  a 
rule,  to  be  rather  a  banker  tlian  a  servant,  but  every  case  depends  on  its 
special  circumstances.  In  B.  v.  Murphy,  1850,  4  Cox,  C.  C.  101,  the 
prisoner  was  both  clerk  and  treasurer  (see  the  explanation  of  tliis  case 
given  in  B.  v.  Tyree).  In  B.  v.  Welch,  1846,  1  Den.  199,  the  circum- 
stances were  very  similar  to  those  of  B.  v.  Tyree,  and  Coleridge,  .1. ,  api)ears 
to  have  been  satisfied  that  tlie  prisoner  was  a  servant,  and  did  not  reserve 
the  point.     It  is  singular  that  this  case  is  not  referred  to  in  B.  v.  Tyree. 

&  B.  V.  Burton,  1829,  1  Moo.  237,  explained  in  Williams  v.  Stott,  1833, 
3  Tyrw.  688. 

6  Williams  v.  Stott,  1833,  3  Tyrw.  688. 

7  B.  V.  Htainer,  1870,  1  C.  C.  R.  230,  and  see  B.  v.  Tankard  (1894), 
1  Q.  B.  548.     In  the  argument  on  the  former  case   both  sides  assumed 


THE   CRIMINAL    LAW  275 

embezzlement  of  its  funds,  although  some  of  its  rules  are  void 
as  being  in  restraint  of  trade. 

(16.)  ^  The  servant  of  a  society,  the  members  of  which  took 
an  unlawful  oath  under  37  Geo.  3,  c.  123,  and  52  Geo.  3,  c.  104, 
cannot  be  convicted  of  embezzlement  for  misappropriating  the 
funds  of  the  society. 

Article  336. 

the  property  embezzled  must  be  the  master's. 

The  ofifence  of  embezzlement  cannot  be  committed  by  the 
appropriation  of  property  which  does  not  belong  to  the 
master  of  the  alleged  offender,  although  such  property  may 
have  been  obtained  by  such  alleged  off"ender  by  the  improper 
use  of  the  property  intrusted  to  him  by  his  master,  but  pro- 
perty which  does  belong  to  the  master  of  the  offender  may 
be  embezzled,  although  the  off"euder  received  it  in  an  irre- 
gular way. 

lUustratioiis. 

(1.)  -  B,  the  high  bailiff  of  a  county  court,  appointed  A  a 
bailiff.  By  rules  of  practice  it  was  A's  duty  to  pay  over  moneys 
levied  by  him  to  the  registrar.  A  received  certain  money  and 
appropriated  it,  the  money  being  the  money  of  the  registrar  and 
not  B's  whose  servant  (if  any  one's)  A  was.  This  was  not 
embezzlement. 

(2.)  ^  A  railway  company  contracted  with  B  to  deliver  the 
railway's  coals  in  the  railway's  carts,  B  finding  horses  and 
carmen,  but  the  terms  of  the  contract  were  such  as  to  make  the 
carmen,   after  receiving  the  money,  answerable    to  tlie  railway. 


that  if  the  society  was  criminal  the  conviction  could  not  be  sustained. 
(>j<-kl>um,  C.J. ,  said,  "It  is  unnecessary  to  consider  how  far  the  criminal 
|)ur[)o.seK  of  a  society  might  affect  its  title  to  jiroperty."  As  stolen 
|)ro|)erty  niaj'  be  stolen  from  tlie  thief  who  stole  it  (1  Hale,  P.  C.  507), 
the  (|ueKtion  miglit  fleserve  consideration  if  it  ever  arose.  //.  v.  Hunt,  in 
the  next  IlluMlration,  is  in  point,  but  it  is  only  a  Kwi /»•«».•<  decision. 

'  H.  V.  Hunt,  IHMS,  HC.  &  1'.  042,  by  Mirehouse  (Com.  Serj. ),  iiflcr 
•  onsulting  IioK<iM<|uel  and  Coleridge,  J.I. 

-   I{.  V.  (llonr,  I  S(J4,  L.  &  C.  4<)(). 

"•  II.  V.  /{(aumoiil,  18.')4,  1).  ^  I*.  2~il  The  circiiniHtiURis  of  tliis  ease 
are  at  first  sight  identical  witii  those  of  A',  v.  Tlwrjn,  1M.">S,  I),  k  H.  r>(5'2, 
in  wliich  the  conviction  was  aflirmed  ;  but  the  special  terms  of  the  con- 
InK.-t,  I  MiippoMc,  make  llic  diH'erence.  It  is  singular  tiiat  It.  v.  lirdnmonl 
iM  not  referred  to  in  It.  v.  ThoijH',  otlierwise  than  in  a  note  by  tlie  reporter 
■it  the  end  of  tlie  case. 

T    2 


276  J    DIGEST   OF 


A,  a  carman,  received  money  for  coals  and  appropriated  it.  This 
was  not  embezzlement,  as  the  money  was  not  the  inonoy  of  B, 
but  of  the  railway  company. 

(3.)  ^  A,  a  bargeman,  was  furljuldcn  l)y  15,  his  master,  to  take 
a  cargo  on  his  barge  on  part  of  a  particular  voyage.  A  took 
the  cargo,  appropriated  the  freight  to  himself,  and  denied  the 
receipt  of  it  when  questioned  by  his  master.  The  person  from 
whom  he  took  the  cargo  and  freight  knew  of  no  one  in  the 
transaction  except  A.  This  was  not  embezzlement,  as  the 
freight  did  not  belong  to  B. 

(4.)  -  A,  intrusted  with  a  cheque  for  B,  gets  it  cashed  by  a 
friend,  and  not,  as  was  the  regular  course,  at  a  bank,  and 
appropriates  the  proceeds.     This  is  emljezzlement. 


Article  337. 
distinction  between  embezzlement  and  other  kinds  of 

THEFT. 

The  distinction  between  embezzlement  by  a  clerk  or 
servant  and  other  kinds  of  theft  is,  that  in  other  kinds  of 
theft  the  property  stolen  is  taken  out  of  the  possession  of 
the  owner,  whereas,  in  embezzlement  by  a  clerk  or  serv^ant 
the  property  embezzled  is  converted  by  the  offender  whilst 
it  is  in  the  offender's  possession  on  account  of  his  master 
and  before  that  possession  has  been  changed  into  a  mere 
custody. 

lUiistrations. 

(1.)  '^  A,  B's  servant,  has  authority  to  take  orders,  but  none 
to  send  out  goods  from  B's  shop.  A  takes  an  order  for  pickles 
and  treacle,  enters  in  his  master's  book  an  order  for  pickles  only, 
takes  froin  the  shop  and  delivers  to  the  customer  both  pickles 
and  treacle,  and  keeps  the  price  of  the  treacle.  This  is  a  theft 
of  the  treacle,  as  A  had  no  authority  to  deliver  it,  but  it  is  not 
an  embezzlement  of  the  price,  as  it  was  not  received  on  B's 
account,  but  in  fraud. 

(2.)  ■*  A,   a  clerk  to  a  navy  tailor,  goes  on  board  a  man-of-war 


1  R.  V.  Cullum,  1873,  2  C.  C.  R.  28. 

2  R.  V.  Gale,  1876,  46  L.  J.  (M.  C.)  134. 

3  R.  V.   Wilson,  1839,  9  C.  &  P.  27.     The  prisoner  having  been  indicted 
for  embezzlement  escaped. 

*  B.  V.  Hairkin.'<,  18.50,  1  Den.  C.  C  584, 


THE    (JUIMIXAL    LAW  iTi 

with  clothes  delivered  to  him  by  his  master  to  sell  to  the  marine 
artillerj'men  on  board.  He  afterwards  enters  as  a  seaman  on 
another  ship,  carrying  off  the  clothes.  A  commits  theft,  and 
not  embezzlement. 

(3.)  ^  A,  the  manager  of  a  branch  bank,  has  in  his  office  a 
safe,  the  property  of  the  bank,  and  of  which  the  bank  manager 
keeps  the  key  at  the  head  office.  A's  duty  is  to  put  money 
received  during  the  day  into  this  safe.  He  takes  part  of  it  out 
of  the  safe  and  applies  it  to  his  own  purposes.  This  is  theft, 
and  not  embezzlement. 

(4.)  -  A's  duty  is  to  get  bills  accepted  and  discounted  for  his 
master.  A  having  got  a  bill  accepted  foi'  his  master,  lays  it 
with  other  bills  on  his  master's  desk.  He  then  takes  it  from 
his  master's  desk,  gets  it  cashed,  and  appropriates  the  money. 
This  is  theft. 

(5.)  ^  A  receives  from  his  master,  B,  dock  Avarrants  enabling 
him  to  get  property  from  the  docks,  and  is  induced  by  B  to  carry 
the  property  to  London.  A  on  the  road  appropriates  part 
of  the  property.      This  is  theft. 

(6.)  ■*  A,  B's  servant,  is  sent  by  B  to  fetch  240  quarters  of 
oats,  which  B  has  purchased,  and  which  are  Ij'ing  on  a  vessel 
in  the  Thames.  Whilst  the  oats  are  being  measured  into  B's 
barge,  A  causes  five  quarters  to  be  put  up  in  sacks  and  set 
aside,  the  rest  being  loose.  A  then  sells  the  sacks  of  oats  for 
his  own  benefit  from  the  vessel,  and  before  they  were  put  into 
the  Ijarge.     This  is  theft. 

(7.)  ^  A,  B's  servant,  gets  plate  for  his  master  from  a  silver- 
smith, puts  it  in  B's  plate-chest,  and  then  takes  it  out  and 
appropriates  it.  This  is  theft.  ["  If  he  appropriates  it  before 
he  puts  it  into  the  plate-chest  he  commits  embezzlement.] 

(8.)  "  A,  B's  servant,  receives  from  C,  a  fellow-servant,  £3  of 
B's  money,  and  appropriates  lO.v.  to  his  own  use.  This  is  not 
embezzlement  [but  is  theft]. 

(9.)  ^  A,  a  banker's  clerk,  whose  business  it  is  to  receive  notes 


'   /.'.  V.   Wn.jhi,  1858,  D.  &  B.  431. 

-  Chiprh(ui-^x  Cane,  ITOfl,  2  Lea.  (599. 

■>  l{.  V.  XoriaJ,  1844,  1  Cox,  C.  C.  95. 

<  Ahmhirn'M  6'«s^,  1798,  2  Kast,  P.  C.  509  ;  2  Russ.  Vr.  '^\'^. 

■'  I'er  Coleri.lge,  J.,  in  /'.  v.    Walts,  1H5(»,  2  Den.  at  p.   19. 

"  A  flictuni  of  Wilde,  C..J.,  in  It.  v.  WiiIIh  seeniK  to  .say  the  opposite, 
Ijut  if  tiiis  were  8o,  the  whole  diMtinetion  hetween  enihe/./.K-nieiit  anil  tlieft 
wr>ul<i  he  taken  away  (aH  no  douht  it  ought  to  he,  as  a  matter  of  eoninion 
Henne).  See  .Mr.  (JreaveH*  reniarltH  on  Wilde,  CJ.'h  di<;tuni  and  on  tiie 
whole eaHe  of  II.  v.    WrillM,  2  Kuhm.  ('v.  '.VIW,  not(!H  (h)  and  (t). 

7   /.'.  V.  Murray,  Ih;{(I,  2  Kuhm.  (Jr.  .'{14  ;  5  (.'.  &  1'.  145  ;    I   .\Io<«Iy,  27(i. 

«    lin:,hy\s    Cn.H,,     1 79!»,    2    L«-a.    h:{5  ;   2    Kanl .    I'.    ( '.    571.      'I'hiH  caHe 


278  A    BIG  US  T   OF 


over  the  counter  and  put  them  in  a  drawer,  receives  a  note  for 
.£100  from  the  servant  of  a  customei',  and  ap])ropriates  it  to 
himself  without  putting  it  into  the  drawer.  This  is  not  theft 
at  common  hiw,  but  is  embezzlement. 


Article  338. 
evidence  as  to  embezzlement. 

^  The  inference  that  a  prisoner  has  embezzled  property  by 
fraudulently  converting  it  to  his  own  use  may  be  drawn 
from  the  fact  that  he  has  not  paid  the  money  or  delivered 
the  property  in  due  course  to  the  owner,  or 

from  the  fact  that  he  has  not  accounted  for  the  money  or 
other  property  which  he  has  received,  or 

from  the  fact  that  he  has  falsely  accounted  for  it,  or 

from  the  fact  that  he  has  absconded,  or 

^  from  the  fact  that  upon  the  examination  of  his  accounts 
there  appeared  a  general  deficiency  unaccounted  for ; 

^  but  none  of  these  facts  constitutes  in  itself  the  offence 
of  embezzlement,  nor  is  the  fact  that  the  alleged  offender 
rendered  a  correct  account  of  the  money  or  other  jjroperty 
intrusted  to  him  inconsistent  with  his  having  ^embezzled  it. 

occasioned  the  passing  of  the  39  Geo.  3,  c.  85,  now  I'e-enacted  in  sub- 
stance by  24  &  25  Vict.  c.  96,  s.  68. 

1  These  facts  are  the  common  evidence  of  embezzlement  given  in  every 
instance,  and  require  no  ilhistration.  That  the  non-payment  is  only  by 
way  of  delay,  the  false  accounting  a  mistake,  &c.,  are  common  topics  of 
defence. 

^  It  V.  Grove,  1835,  1  Moody  447  ;  2  Russ.  Cr.  377-380.  The  authority 
of  this  case,  decided  by  eight  judges  to  seven,  has  been  doubted.  See  Ji. 
V.  Moah,  1856,  D.  &  P.  626,  639  :  see,  too.  It  v.  Lambert,  1847,  2  Cox, 
C.  C.  309  ;  R.  v.  Lloijd  Jone.^,  1838,  8  C.  &  P.  288  ;  It  v.  Chapman,  1843, 
1  C.  &  K.  119  ;  i?.  V.  Khuj,  1871,  12  Cox,  C.  C.  73. 

3  R.  V.  Hodgson,  1828,  3C.  &  P.  422;  R.  v.  Winnall,  1851,  5  Cox, 
C.  C.  326.  Mr.  Greaves'  note,  2  Russ.  Cr.  p.  371,  on  this  case  disapproves 
of  the  summing  up  of  Erie,  J.,  on  what  appears  to  me  to  be  a  misconcep- 
tion of  its  purport.  Mr.  Greaves'  view  tnat;  he  fraudulent  conversion 
constitutes  the  offence  and  that  everything  else  is  only  evidence  of  it  is 
obviously  correct  ;  but  I  think  that  Erie,  J. ,  did  not  mean  to  say  anything 
inconsistent  with  this.  Wilful  false  accounting  is  now  a  substantive 
offence.      See  38  &  39  Vict.  c.  24,  s.  2,  and  Article  381,  post. 

*  R.  V.  Guelder,  1860,  Bell,  C.  C.  284  ;  R.  v.  Lvster,  1856,  D.  &  B. 
118. 


THE   CRIMIXAL   LAW  279 


CHAPTER  XXXVIII 

^robbery  axd  extort lox  by  threats 

2  Article  339. 

ROBBERY. 

Every  one  is  guilty  of  felony  and  is  liable,  upon  convic- 
tion thereof,  to  be  kept  in  penal  servitude  in  the  case  of  the 
offences  defined  in  clauses  (a.)  and  {h.)  for  life,  in  the  case  of 
the  offence  defined  in  clause  (c.)  for  fourteen  years,  and  in 
the  case  of  the  offence  defined  in  clause  {d.)  for  five  years, 
who  does  any  of  the  following  things  (that  is  to  say), 

(a.)  ^  who,  being  armed  with  any  offensive  weapon  or  instru- 
ment, robs  any  person,  or 

being  together  with  any  pei*son  or  persons,  robs  or  assaults 
with  intent  to  rob  any  person,  or 

(6.)  ^  who  robs  any  person,  and  at  the  time  of,  or  imme- 
diately before,  or  immediately  after  such  robbery,  wounds, 
beats,  strikes,  or  uses  any  other  personal  violence  to  any 
person,  or 

(c)  *  who  robs  any  person,  or 

{d.)  ■'  who  assaults  any  person  with  intent  to  rob. 

AirncLE  340. 

EXT(JirrJ()\    J5V    THREATS. 
Every  one  coiiimits   tilony  and  is  liable  upon  conviction 

'   :}  Hi.-,t.  Cr.  Law,  14!J    I.'jO.      Draft  Code,  I'arL  XXV'IL,  .ss.  28S-L"JG. 

'^  For  (IcHnitioii  of  rohljery,  an<l  illustratious  aa  to  the  nature  of  tiiufcar 
ami  violence  involved,  Bee  Article  ',i'12. 

'  '24  Hi.  2')  V^ict.  c.  9*5,  s.  4.'}.  OHeiulcrH  against  tliiH  section  are  liaMe, 
if  inaleH,  to  lje  tlirice  privately  wlii^jped  in  a<ldition  to  the  otiier  |)uni»h- 
inentH  alxjve  n[>e(;ilie<l.  20  it  2"  Vict.  c.  44,  s.  1.  As  to  the  niaiinir  i»f 
inflicting  thix  puniHlinienl,  Hee  Article  12  ('/),  atitt. 

*  24  &  2')  Vict.  c.  90,  h.  4l». 

•■■  Ibid.  ».  42. 


2c;0  A   DIGEST  OF 


thereof  to  penal  servitude  for  life  in  cases  a.  i.,  a.  ii.,  h.  and  c, 
for  ten  years  in  case  a.  in.,  and  five  years  in  case  d.,  who 

(a.)  sends,  delivers,  utters,  or  directly  or  indirectly  causes 
to  be  received,  knowing  the  contents  thereof,  any  letter  or 
writing 

(i.)  ^  demanding  any  valuable  thing  of  any  person  with 
-  menaces,  and  without  any  reasonable  and  piobable  cause ; 

(ii.)  ■'  accusing,  or  threatening  to  accuse,  any  other  person 
of  any  crime  punishable  by  law  with  death  or  penal  servitude 
for  not  less  than  ■*  seven  years,  or  of  any  assault  with  intent 
to  commit  any  rape,  or  of  any  attempt  or  endeavour  to  com- 
mit any  rape,  or  of  any  ''infamous  crime,  with  a  view  or 
intent  to  extort  or  gain  any  valuable  thing  from  any  person 
by  means  of  such  letter  or  writing ; 

(iii.)  ^'  threatening  to  burn  or  destroy  any  house,  bam,  or 
other  building,  or  any  grain,  hay,  or  straw,  or  other  agi'icul- 
tural  produce  in  a  rick  or  stack,  or  in  or  under  any  building, 
or  any  ship  or  vessel,  or  to  kill,  maim,  or  wound  any  cattle; 
or 

{h.)  '  who  accuses,  or  threatens  to  accuse,  any  person  what- 
ever of  any  of  the  crimes  specified  in  a.  ii.,  with  the  view  or 
intent  to  extort  or  gain  any  valuable  thing  from  any  person 
whatever ;  or 

(c.)  ®  who,  with  intent  to  defraud  or  injure  any  other  person, 

1  24  &  25  Vict.  c.  96,  s.  44  W.  See  ante,  p.  2r)(5,  Article  322, 
Illustration  (7). 

^  Not  necessarily  menaces  of  violence  to  person  or  property,  or  of 
accusation.     R.  v.  Tomlinson  [1895],  1  Q.  B.  706. 

3  Ibid.  s.  46,  W. 

*  This  must  mean  penal  servitude  for  seven  years  or  more.  There  is 
no  crime  for  which  penal  servitude  for  seven  years  is  a  minimum  punish- 
ment. 

s  i.e.  buggery,  committed  either  with  mankind  or  beast,  every  assault 
with  intent  to  commit  the  same,  every  attempt  or  endeavour  to  commit 
the  same,  every  solicitation,  ])ersuasion,  promise,  or  threat  offered  or  made 
to  any  person  whereby  to  move  or  induce  such  person  to  commit  or  permit 
the  same  (Ibid.  c.  96,  s.  46). 

c  24  &  25  Vict.  c.  97,  s.  50,  W. 

^  24  &  25  Vict.  c.  96,  s.  47,  W.  An  intent  to  compel  a  person  bj' 
threats  to  buj'  a  mare  is  within  this  section.  R.  v.  Redman,  1865, 
1  C.  C.  R.  12. 

8  Ibid.  s.  48,  S. 


THE    CRIMINAL    LAW  281 

compels  or  induces  any  person  to  deal  with  any  valuable 
security  in  any  of  the  manners  mentioned  in  note  1,^ 

by  any  unlawful  violence  to.  or  restraint  of  the  person  of 
another,  or  by  any  threat  of  such  violence  or  restraint,  or 

by  accusing,  or  threatening  to  accuse,  anv  person  of  treason 
or  felony,  or  any  such  crime  as  is  mentioned  in  clause  a.  ii. ; 
or 

(W.)-who,  with  menaces  or  force,  demands  any  valuable 
thing  of  any  person  with  intent  to  steal  the  same  (^whether 
the  thing  demanded  is  received  or  not). 

■*  It  is  immaterial  whether  the  menaces  or  threats  mentioned 
in  clauses  a.  i.,  a.  ii.,  h.,  c,  and  d.  be  of  violence,  injury,  or 
accusation  to  be  caused  or  made  by  the  offender  or  by  any 
other  person. 

The  expression  "  valuable  thing  "  in  this  Article  means  any 
property,  chattel,  money,  valuable  securit}',  or  other  valuble 
thing. 

1  "  Execute,  make,  accept,  indorse,  alter,  or  destroy  the  whole  or  any 
part  of  any  valuable  security,  or  to  M'rite,  impress,  or  affix  his  name,  or 
tlie  name  of  any  other  person,  or  of  any  compau}-,  firm,  or  co-partnership, 
or  the  seal  of  any  bodj-  corporate,  company  or  societj',  upon  or  to  any 
paper  or  parchment,  in  order  that  tlie  same  may  be  afterwards  made  or 
converted  into,  or  used,  or  dealt  with  as  a  valuable  security." 

-  24  &  25  Vict.  c.  96,  s.  45,  C.  B.  v.  Oi/den,  K.  v.  Wa/ton,  1863, 
L.  &  C.  288,  shows  what  sort  of  menaces  fall  within  this  section.  A 
oljtained  five  shillings  from  B  by  pretending  to  be  a  bailiff  and  tlireatening 
to  distrain.  It  was  held  that  Ids  guilt  depended  on  tiie  question  whellier 
or  not  he  made  the  threat  in  such  a  way  as  to  unsettle  B's  mind,  "  and 
take  away  from  his  acts  that  element  of  free,  voluntary  action  which  alone 

'iistitutes  con.sent." 

'  Ii.  V.  Ifobert-ion,  1864,  L.  &  C.  483.  In  tliat  case  it  was  lield  that  a 
policeman  who  said  he  wouhl  lock  a  man  up  for  speaking  to  a  prostitute 
unless  he  received  five  shillings  used  a  "  menace,"  notwithstanding  his 
having  no  power  to  jIo  so. 

'  24  &  25  Vict.  c.  96,  s.  49.  There  is  no  similar  section  in  tlic  Act 
relating  to  offences  against  the  person  (see  Article  255)  (a),  or  in  tiie  Act 
relating  to  malicious  injuiies  to  projierty,  from  wliich  a.  ii.  and  a.  iii.  are 
taken.  I  tliink,  however,  both  on  authority  and  on  ])rincif)k',  tliat  tliose 
cIuUH'.'K  wf>uld  l)c  cfjnstrued  as  if  there  were.  'I'lie  language  of  the  sections 
Mil  which  tiiis  Article  is  fr)unded  has  been  condensed   and  reari'anged,  but 

will  1)0  found  on  examination  that  the  Article  accurately  represents  the 
'  ven  Hections  wliich  it  eiiilHidicH.  As  to  threats  to  publish  libels  with 
intent  In  extort,  see  Art.  .'<<>.'{,  |).  2fn. 


282  A    DIGEST   OF 


CHAPTER  XXXIX 

1   BUnaLARY,    HOUSEBREAKING,   ETC. 

Article  341. 
definitions. 

In  this  chapter  the  following  words  are  used  in  the  follow- 
ing senses : — 

^  Night  means  the  interval  between  nine  of  the  clock  at 
night  and  six  of  the  morning. 

House  means  a  permanent  building  in  which  the  owner,  or 
the  tenant,  or  any  member  of  the  family  habituall}'  sleeps  at 
night. 

^If  a  building  is  so  constructed  as  to  consist  of  several 
parts  having  no  internal  communication  between  each  other, 
and  if  these  parts  are  occupied  and  habitually  slept  in  by 
different  tenants,  they  may  constitute  separate  dwelling- 
houses. 

^  A  building  occupied  with  and  within  the  same  curtilage 
with  any  dwelling-house  is  deemed  to  be  part  of  the  said 
dwelling-house  if  there  is  between  such  building  and  dwell- 
ing-house a  communication  either  immediate  or  by  means  of 
a  covered  and  inclosed  passage  leading  from  the  one  to  the 
other,  but  not  otherwise. 

The  word  "  break  "  means 

{ci.)  the  breaking  of  any  part,  internal  or  external,  of  the 
building  itself,  or  the  opening  by  any  means  whatever  (in- 
cluding lifting,  in  the  case  of  things  kept  in  their  places  by 
their  own  weight)  of  any  door,  window,  shutter,  collar  flap, 

1  3  Hist.  Cr.  Law,  150.      Draft  Code,  Part  XXVIll.,  ss.  297-308. 

^  24  &  25  Vict.  c.  94,  s.  1  ;  the  time  here  referred  to  must  be  taken  to 
be  Greenwich  time,  see  43  &  44  Vict.  c.  9. 

■'  The  cases  and  autliorities  on  this  subject  are  collected  in  Archljold, 
but  there  is  so  little  principle  in  the  matter,  and  each  case  depends 
so  much  on  its  peculiar  cii-cumstances,  that  I  have  not  thought  it  advisable 
to  give  illustrations. 

1  24  &  25  Vict.  c.  90,  s.  53. 


THE   CRIMINAL   LAW  283 

or  other  thing  intended  to  cover  openings  to  the  house,  or  to 
give  passage  from  one  part  of  it  to  another,  and  getting  down 
the  chimney ;  ^ 

(6.)  obtaining  an  entrance  into  the  house  by  any  threat  or 
artifice  used  for  that  purpose,  or  by  coUusion  with  any  person 
in  the  house. 

The  word  "  enter  "  means  the  entrance  into  the  house  of 
any  part  of  the  offender's  bod}- ,  or  of  any  instrument  held  in 
his  hand  for  the  purpose  of  intimidating  any  person  in  the 
house  or  of  removing  any  goods,  but  does  not  include  the 
entrance  of  part  of  an  instrument  used  to  break  the  house 
open. 

Illustration. 

-  A  opens  a  sash  window,  puts  a  crowbar  under  a  shutter 
three  inches  inside  the  window,  and  tries  to  break  open  the 
shutter,  but  does  not  come  within  the  sash  window.  Here  there 
is  a  breaking,  but  no  entry. 


Article  342. 
robbing  pl.\ces  of  worship — burglary. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life,  who 

(a.)  ^breaks  and  enters  any  church,  chapel,  meeting-house, 
or  other  place  of  divine  worship,  and  commits  any  felony 
therein  ;  or 

(b.)  *  breaks  and  enters  any  dwelling-house  by  night  with 
intent  to  commit  a  felony  therein.  The  offence  in  this  case 
is  called  burglary. 

'  Ah  to  what  constitutes  breaking  see  the  cases  collected  in  Arch- 
l>olil  :  the  text  will  he  found  to  he  a  correct  sunniiary  of  tiie  law  so 
formed.  Collins,  J.,  at  the  Cardiff  Assizes  in  Novend»er  IS'J.S,  toltl  the 
jury  that  breaking  into  a  iiouse  meant  entering  it  in  any  way  except  Ijy 
an  open  door  or  window,  and  allowed  a  man  to  l>e  convicted  for  burglary 
who  entered  a   iiouse  through  a  swing  door. 

^  /{.  V.  J{wl,  1H28,  1  iMoo.  iH'.i;  and  sec  A',  v.  /,'<,!><  ris,  ITdJ,  J  Ka.st, 
I'.   C.   487. 

'  24  &.  'J.'j  Vict.   c.    yO,  B.   ^O.     This  offence  is  termed  sacrilege. 

*   Ibid.   H.  r)2,   for  jninishment  ;  'J  Kuhh.   ('r.    2,   for  definition. 


284  A    DWEST    OF 


Article  843. 

housebreaking  and  commission  of  felony. 

^  Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  fourteen  years  penal  servitude  who  breaks  and 
enters  and  commits  any  felony  in  any  dwelling-house,  or  any 
building  being  within  the  curtilage  of  a  dwelling-house  and 
occupied  therewith  (but  not  being  part  thereof  within 
Article  341),  or  any  schoolhouse,  shop,  warehouse,  or  coimt- 
ing-houso. 

Article  344. 

entering  dwelling-house  with  intent. 

^  Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  seven  years  penal  servitude  who  breaks  and  enters 
any  of  the  buildings  mentioned  in  Articles  342  or  343,  or 
who  by  night  enters  any  dwelling-house,  with  intent  in 
either  case  to  comuut  felony  therein. 


Article  345. 
breaking  out  after  committing  felony. 

^  Every  one  who,  being  in  any  of  the  buildings  mentioned 
in  Articles  342  or  343,  commits  a  felony  therein,  and  breaks 
out  of  the  same,  commits  felony,  and  is  liable  to  the  same 
punishment  as  if  he  had  broken  in  and  committed  felony 
therein.  If  such  building  is  a  dwelling-house,  and  the 
offence  is  committed  at  night,  the  offender  commits  burglary. 

Every  one  Avho  enters  any  dwelling-house  with  intent  to 
commit  a  felony  therein,  and  breaks  out  of  the  same  by 
night,  is  guilty  of  burglary. 

1  24  &  25  Vict.  c.   96,  ss.  55  and  56. 
-  Ibid.   ss.   54  and  57. 

2  Ibid.  ss.  50,  51,  55,  56.      Tliese  sections  are  re-arranged. 


TUE    CRIMIXAL    LAW  285 


Article  346. 

being  found  in  possession  of  housebreaking 
instruments. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  for  the 
first  offence  to  a  punishment  of  five  or,  if  he  has  been 
previously  convicted  of  felony  or  of  such  misdemeanour,  of  ten 
years  penal  servitude  ; 

-who  is  found  by  night  armed  with  an}-  dangerous  or 
offensive  weapon  or  instrument  whatever  with  intent  to 
break  or  enter  into  any  dwelling-house  or  other  building 
whatsoever,  and  to  commit  any  felony  therein ; 

or  is  found  by  night  having  in  his  possession,  without 
lawful  excuse  (the  proof  of  which  excuse  lies  upon  him),  any 
picklock  key,-  crow,  jack,  bit,  or  other  implement  of  house- 
breaking ; 

or  is  found  by  night  having  his  face  blackened  or  other- 
wise disguised  with  intent  to  ccmimit  any  felony  ; 

or  is  found  by  night  in  any  dwelling-house  or  other 
building  whatsoever  with  intent  to  commit  any  fl-lony 
therein. 

'  24  &  25  Vict.  c.   9U,  ss.  58  and  59. 

-  A  common  key  may  be  such  an  implement.  /?.  v.  Oldhnm,  1852, 
2  Den.  472.  Maule  and  Cresswell,  JJ. ,  were  both  of  opinion  that  there 
should  be  a  comma  between  "picklock"  and  "key."  R.  v.  Oldham, 
however,  makes  this  unimportant. 


2SG  A    DIG' EST   OF 


CHAPTER  XL 

^punishments  for  stealing  particular  things  and 
receiving  goods  unlawfully  obtained 

Article  347. 

punishment  for  stealing  things  for  which  no  special 
punishment  is  provided. 

^  Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  five  years  penal  servitude  who  steals  anything 
capable  of  being  stolen,  and  for  the  stealing  of  which  no 
specific  punishment  is  hereinafter  provided. 

^If  the  conviction  takes  place  after  a  previous  convic- 
tion for  felony,  either  upon  an  indictment  or  summarily, 
the  maximum  punishment  is  increased  to  ten  years  penal 
servitude. 

If  the  conviction  takes  place  after  a  previous  conviction 
for  any  misdemeanour  indictable  under  24  &  25  Vict.  c.  96,  or 

if  the  conviction  takes  place  after  two  summary  convic- 
tions under  24  &  25  Vict.  c.  96,  or  24  &  25  Vict.  c.  97,  or 
any  Act  mentioned  in  the  footnote  hereto, 

the  maximum  punishment  is  increased  to  seven  years 
penal  servitude. 

Article  348. 

killing  animals  with  intent  to  steal  equivalent  to 

stealing. 

^Ever}^  one  who  wilfully  kills  any  animal  with  intent  to 

1  3  Hist.  Cr.   Law,   146-60.     Draft  Code,  Part  XXV. 

2  24  &  25  Vict.  c.  96,  s.  4,  W.  Thefts  falling  under  tliis  Article 
appear  to  be  the  "simple  larceny"  referred  to  in  24  &  25  Vict.  c.  96, 
ss.  33  and  36  (Article  353  (e. )  and  (/. ) ).  Hale  means  by  "  simple  larceny  " 
larcenj'  without  violence. 

^  24  &  25  Vict.  c.  96,  ss.  7,  8,  9,  W.  The  statutes  are  7  &  8  Ceo.  4, 
cc.  29,  30  ;  9  Geo.  4,  cc.  55,  56  ;  10  &  II  Vict.  c.  82  ;  II  &  12  Vict.  c.  59  ; 
14  &  15  Vict.  c.  92.  These  are  earlier  Acts  on  the  same  subjects  as  the 
two  Consolidation  Acts.  The  reference  in  the  Larceny  Act  to  18  &  19 
Vict.  c.  126  must  be  read  as  a  reference  to  42  &  43  Vict.  c.  49,  s.  155 
(the  Summary  Jurisdiction  Act  1879). 

*  24  &  25  Vict.  c.  96,  s.  II. 


THE    CRIMIXAL    LAW  287 

steal  the  carcase,  skin,  or  any  part  of  the  animal  so  killed, 
commits  felony,  and  is  liable  upon  conviction  thereof  to  the 
same  punishment  as  if  he  had  been  convicted  of  feloniously 
stealing  the  same,  provided  the  offence  of  stealing  the  animal 
so  killed  is  felony. 

Article  349. 
stealing  and  concealing  valuable  securities. 

^  Every  one  who  steals,  or  for  any  fraudulent  purpose 
destroys,  cancels,  or  obliterates,  the  whole  or  any  part  of  any 
-  valuable  security,  other  than  a  document  of  title  to  land, 
commits  felony  of  the  same  nature  and  in  the  same  degree, 
and  punishable  in  the  same  manner,  as  if  he  had  stolen  any 
chattel  of  the  like  value  with  the  share,  interest,  or  deposit  to 
which  the  security  so  stolen  may  relate,  or  with  the  money 
due  on  the  security  so  stolen  or  secured  thereby  and  remain- 
ing unsatisfied,  or  with  the  value  of  the  goods  or  other 
valuable  thing  represented,  mentioned,  or  referred  to  in  or 
by  the  security. 

Provided  that  no  person  who  commits  any  offence  against 
this  Article  or  clause  («.)  of  the  next  succeeding  Article  is 
liable  to  be  convicted  of  any  such  offence  by  any  evidence 
whatever  in  respect  of  any  act  done  by  him,  if  previously 
to  being  charged  with  such  offence  he  first  discloses  such 
act  on  oath  in  consequence  of  any  compulsory  process  of 
any  Court  which,  on  the  6th  of  May  1861.  was  a  Court  of 
law  or  equity,  in  any  action,  suit,  or  proceeding  hond  fide 
instituted  by  any  party  aggrieved,  or  if  he  first  discloses  the 

>  24  k  2.">  Vict.  c.  9(i,  k.  27. 

-  Sect.  1.      Valuable  Hccurity  iiicludeK,  "any  order,  Kxehe(juer  acquit- 

'ince,  or  other  security  wliatHoever  entitling  or  evidencing  the  title  of  any 

|)<;rBf>n  or  hcxly  corjKJrate  to  any  Hliare  or  intei-est  in  any   public  stock  or 

fund,  whether  of  the  United  Kingdom,  or  of  Great  Urit^iin,  or  of  Ireland, 

■  I  of  any  frireign  «tate,  or  in  any  fuinl  of  any  liody  corporate,  company,  or 

"jety,  whether  within  the   United    Kingdom  or  in  an}'   foreign   state  or 

•imtry,  or  to  any  deiiosit  in  any  l)ank,  and  sluiU  also  incluile  any   debcn- 

ire,  de<;d,  l>ond,  bill,  nol<!,  warrant,  order,  or  otiier  security   wliatsoever 

•  '■■  money,  or  for  payment  of  money,  whether  of  tlu;   United  Kingdom,  or 

'  Gr«i;it  ISritain,  or  of  Ireland,  or  of  any  foreign  Htat<',  and  any  doeiiinent 

;  title  to  lands  cjr  goods"  as  detined  in  Article  '.\'u\,  note  '6. 


288  A    DIGEST   OF 


same  in  any  compulsory  examination  or  deposition  before 
any  Court  upon  the  hearing  of  any  matter  in  bankruptcy  or 
insolvency. 


Ahticle  850. 

THEFTS    PUNlSllAr.l.K    WITH    PENAL    SERVITUDE    FOR    LllE. 

Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  penal  servitude  for  life,  and  in  respect  of  the 
offences  defined  in  clause  (?*.)  or  (c.)  to  an  alternative  term  of 
imprisonment  with  hard  labour  for  four  years,  who  docs  any 
of  the  following  things  (that  is  to  say): 

(«.)  ^  who,  either  during  the  life  of  the  testator  or  after 
his  death,  steals,  or  for  any  fraudulent  purpose  destro3's, 
cancels,  obliterates,  or  conceals,  the  whole  or  any  part  of  any 
will,  codicil,  or  other  testamentary  instrument,  whether  it 
relates  to  real  or  personal  estate,  or  to  both  ; 

{b.)  -  or  who  being  employed  under  the  Post  Office  steals 
or  destroys  a  post  letter  containing  any  chattel  or  money 
whatsoever  or  any  valuable  security  ; 

(c.)  ^  or  who  steals  a  post  letter-bag,  or  a  *  post  letter  from 
a  post  letter-bag,  or  from  a  post  office,  or  from  an  officer  of 
the  post  office,  or  from  a  mail ; 

1  24  &  25  Vict.  c.  96,  s.  29. 

-  7  Will.  4  &  1  Vict.  c.  36,  s.  26  ;  as  to  punishment  see  ss.  41,  42,  and 
for  definitions  s.  47. 

3  Ibid.  ss.  27,  28  ;  for  punishments,  ss.  41,  42,  and  for  definitions,  s.  47. 

•*  "  Post  letter  "  means  any  letter  or  packet  transmitted  by  the  post 
under  the  authority  of  the  Postmaster-General  from  the  time  of  its  being 
delivered  to  a  post  office  letter-carrier,  or  other  person  authorised  to 
receive  letters,  to  the  time  of  its  being  delivered  to  the  person  to  whom  it 
is  addressed,  or  to  his  house  or  office,  or  to  his  servant  or  agent,  or  other 
person  considered  to  be  authorised  to  receive  the  letter,  according  to  the 
usual  manner  of  delivering  that  person's  letters.  A  letter  not  posted  in 
the  proper  course,  but  put  amongst  the  letters  so  posted  for  a  sorter  to 
sort,  is  not  a  post  letter,      li.  v.  Shpherd,  1856,  I).  &  P.  606. 

"  Post  letter-bag  "  includes  a  mail  bag,  or  box,  or  package  or  parcel  or 
other  envelope  or  covering  in  which  post  letters  are  conveyed,  whether  it 
contains  post  letters  or  not. 

"Mail"  includes  every  conveyance  by  Mhich  post  letters  are  carried, 
every  person  or  horse  employed  in  conveying  or  delivering  post  letters, 
every  vessel  employed  bj-  or  under  the  Post  Office  or  the  Admiralty  for  the 
transmission  of  post  letters,  or  not  regularly  so  employed  but  under  con- 


THE   CRIMINAL    LAW  289 

or  any  chattel,  money,  or  valuable  security,  from  or  out  of 
a  post  letter; 

or  who  stops  a  mail  with  intent  to  rob  or  search  the 
same  : 

{(i.)  ^  or  who  secretes,  embezzles,  or  runs  away  with  any  of 
the  things  mentioned  below.-  or  any  part  of  any  such  thing, 
being  an  officer  or  servant  of  the  Governor  and  Company  of 
the  Bank  of  England,  or  of  the  Bank  of  Ireland,  and  being 
entrusted  with  any  such  thing  lodged  or  deposited  with  the 
said  governor  and  company,-^  or  with  him  as  an  officer  or 
servant  of  the  said  governor  and  company. 

Article  351. 
theft.s  punishable  with  penal  servitude  for  foltiteen 

YEARS. 

Every  one  commits  felony  and  is  liable,  upon  conviction 
thereof,  to  fourteen  years  penal  servitude,  and  in  respect  of 
'jffence  {j.)  to  an  alternative  term  of  imprisonment  with  hard 
labour  for  three  years,  who  does  any  of  the  following  things 
(that  is  to  say): 

(a.)  *  who  steals  any  horse,  mare,  gelding,  colt,  filly,  bull, 
cow,  ox,  heifer,  calf,  ram,  ewe,  sheep,  or  lamb,  or  wilfully 
kills  any  such  animal  with  intent  to  steal  the  carcase,  skin, 
or  any  part  thereof ;  or 

(b.)  ^  who  steals  any  chattel,  money,  or  valuable  security 
from  the  person  of  another  ;  or 

tract  for  the  conve}'ance  of  post  letters,  and  every  ship  of  war  or  vessel  in 
the  service  of  His  Majesty  so  employed. 

"  ValuaVjle  Kecurity  "  is  define*!  in  sect.  47  in  nearly  the  same  terms  a« 
m  sect.  1  of  the  Larceny  Act  :  see  above.  The  only  difference  of  much 
imfKjrtance  is  that  the  definition  in  the  Post  Office  Act  includes  any 
warrant  or  order  for  the  delivery  or  transfer  of  any  goods  or  valuable 
thing  fs.  47). 

'  •1\  &  2.3  Vict.  c.  96,  H.  73. 

-  "  Any  bond,  dee<l,  note,  bill,  dividend  warrant,  or  warrant  for  pay- 
ment of  any  annuity,  or  interest,  or  money,  or  any  security,  money,  or 
other  ffffects  of  any  other  jjcrson,  or  body  politic  or  corporate." 

^  ThiH  must  mean  "either  of  the  said  governors  and  conijKinies.'' 

♦  24  ft  2'j  Vict.  c.  «6,  »s.   10,  11. 

'-  Ibid.  ».  40. 

U 


290  A    DIGEST   OF 


(f.)  ^  who  steals  in  any  dwelling-house  any  chattel,  money, 
or  valuable  security,  if  the  vahie  of  the  property  stolen  is  in 
the  whole  £5  or  more,  or  if  iho  offender  puts  any  one,  being 
in  such  dwelling-house,  in  bodily  fear  by  any  menace  or 
threat ;  or 

(d.)  -who  steals  to  the  value  of  ten  shillings  any  of  the 
^  goods  mentioned  below,  whilst  laid,  placed,  or  exposed, 
during  any  stage,  process,  or  progress  of  manufacture,  in  any 
building,  field,  or  other  place  ;  or 

{e.)  ^who  steals  any  goods  or  merchandise  in  any  vessel, 
barge,  or  boat  of  any  description  whatsoever,  in  any  haven 
or  in  any  port  of  entry  or  discharge,  or  upon  any  navigable 
river  or  canal,  or  in  any  creek  or  basin  belonging  to  or  com- 
municating with  any  such  haven,  port,  river,  or  canal ;  or 

(/.)  •^  who  steals  any  goods  or  merchandise  from  any  dock, 
wharf,  or  quay,  adjacent  to  any  such  haven,  port,  river, 
canal,  creek,  or  basin,  as  is  mentioned  in  the  last  clause ; 
or 

(g.)  ^  who  *^  i)lunders  or  steals  any  part  of  any  ship  or  vessel 
in  distress,  or  wrecked,  stranded,  or  cast  on  shore,  or  any 
goods,  merchandise,  or  articles  of  any  kind  belonging  to 
any  such  ship  or  vessel ;  or 

(h.)  ^who,  being  a  clerk  or  servant,  or  being  employed 
for  the  purpose  or  in  the  capacity  of  a  clerk  or  servant,  steals 
any  chattel,  money,  or  valuable  security  belonging  to  or  in 
the  possession  or  power  of  his  master  or  employer,  or  fraudu- 
lently embezzles  any  chattel,  money,  or  valuable  security 
delivered  to  or  received  and  taken  into  possession  by  the 
offender  for  or  in  the  name  or  on  the  account  of  his  master 
or  employer ;  or 

>  24  &  25  Vict.  c.  96,  ss.  60,  61. 

2  Ibid.  s.  62. 

■^  "  Any  woollen,  linen,  hempen,  or  cotton  yarn,  or  any  goods  or  article 
of  silk,  woollen,  linen,  cotton,  alpaca,  or  mohair,  or  of  any  one  or  more 
of  those  materials  mixed  with  each  other,  or  mixed  with  any  other 
material." 

■*  24  &  25  Vict.  c.  96,  .s.  (i.S. 

-  Ibid.  s.  64. 

''  I  do  not  know  that  this  word  has  any  special  legal  signification. 

■  24  &  25  Vict.  c.  96,  ss.  67,  68,  W. 


THE    CRIMINAL    LAW  291 

(i.)  ^  who,  being  employed  in  the  public  service  of  His 
Majesty,  or  being  a  constable  or  other  person  employed  in 
the  police  of  any  county,  city,  borough,  district,  or  place 
whatsoever,  steals,  embezzles,  or  in  any  manner  fraudulently 
applies  for  his  own  benefit,  or  for  any  purpose  except  the 
public  service,  the  whole  or  any  part  of  any  chattel,  money, 
or  valuable  security  belonging  to  or  in  the  possession  or 
power  of  His  Majesty,  or  intrusted  to  the  offender  or 
received  or  taken  into  possession  by  him  in  virtue  of  his 
employment ;  or 

(;'.)  -  who  steals  a  post  letter-bag  sent  by  a  post  office 
packet,  or  takes  a  letter  out  of  such  bag, 

or  unlawfully  opens  such  bag. 

Article  352. 
thefts  punishable  with  penal  servitude  for  seven 

YEARS. 

•^  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  seven  years  penal  servitude,  who  steals  any  chattel 
or  fixture  of  the  value  of  more  than  £5,  let  to  be  used  by 
him  or  her  in  or  with  any  house  or  lodging,  whether  the 
contract  was  entered  into  by  the  offender  or  his  wife,  or  her 
husband,  or  by  any  person  on  his  or  her,  or  on  her  husband  s, 
behalf. 

If  the  value  of  the  thing  stolen  do  not  exceed  £5,  the 
(jffender  is  liable  to  two  years  imprisonment  and  hard  labour. 

'  Every  one  commits  a  felony  and  is  liable  on  ci>nviction 
thereof  to  penal  servitude  for  seven  years  or  imprisonment 
for  three  years  who  being  employed  under  the  Post  Office 
steals  or  destroys  a  post  letter. 

'   24  k.  ITi  Vict.  c.  96,  b».  69,  70. 

-  7  Will.  4  &  I  Vict.  c.  36,  «.  '-'9  :  for-  i.iini.sliin.iil  scr  ss.  ll,  IJ.  an<i 
for  <letinilioiiH  h.  47. 

'  24  <lk  'lo  Vict.  c.  96,  «.  74,  W  . 
*  7  Will.  4  &  I  Vict.  c.  .S6,  N.  26. 


292  A    DIGEST   OF 


Article  353. 
thefts  punishable  with  penal  servitude  for  five 

YEARS. 

Every  one  commits  felony,  and  i.s  liable  upon  conviction 
thereof  to  five  years  penal  servitude,  who  does  any  of  the 
following  things  (that  is  to  say)  : 

(a.)  ^  who  steals  or  for  any  fraudulent  purpose  destroys, 
cancels,  obliterates,  or  conceals  the  whole  or  any  part  of  any 
-  document  of  title  to  lands  ;  or 

(6.)  -^  who  steals  or  for  any  fraudulent  purpose  takes  from 
its  place  of  deposit  for  the  time  being,  or  from  any  person 
having  the  lawful  custody  thereof,*  or  unlawfully  and  mali- 
ciously cancels,  obliterates,  injures,  or  destroys  the  whole  or 
any  part  of  any  of  the  judicial  or  official  documents  mentioned 
below  ;  ^  or 

(c.)  ^  who  steals,  rips,  cuts,  severs,  or  breaks,  with  intent 
to  steal,  any  glass  or  woodwork  belonging  to  any  building 

1  24  &  25  Vict.  c.  96,  s.  28. 

-  The  term  "document  of  title  to  lands"  includes  "  any  deed,  map, 
paper,  or  parchment  written  or  printed,  or  partly  written  and  partly 
printed,  being  or  containing  evidence  of  the  title,  or  a,ny  part  of  the 
title,  to  any  real  estate,  or  to  any  interest  in  or  out  of  any  real  estate  " 
(Ibid.  s.  1). 

3  Ibid.  s.  30. 

•*  Taking  a  warrant  of  execution  from  a  county  court  bailiff,  under  the 
impression  that  his  authority  depends  on  its  possession,  is  "a  taking  for 
a  fraudulent  pui-pose,"  but  is  not  stealing  under  this  section  :  R.  v.  Bailey, 
1872,  1  C.  C.  R.  347. 

°  Any  record,  writ,  return,  panel,  process,  interrogatory,  deposition, 
affidavit,  rule,  order,  or  warrant  of  attorney.  Any  original  document 
whatsoever  belonging  to  any  Court  of  record,  or  relating  to  any  matter 
civil  or  criminal  begun,  depending,  or  terminated  in  any  such  Court. 
Any  bill,  petition,  answer,  interrogator}',  deposition,  affidavit,  order  or 
decree,  or  any  original  document  whatsoever  of  or  belonging  to  any  Court 
of  Equity,  or  relating  to  any  cause  or  matter  begun,  depending,  or 
terminated  in  any  such  Court.  Any  original  document  in  anywise 
relating  to  the  business  of  any  office  or  employment  under  His  Majesty, 
and  being  or  remaining  in  anj-  office  appertaining  to  any  Court  of  Justice, 
or  in  any  of  His  Majesty's  castles,  palaces  or  houses,  or  in  any  government 
or  public  office. 

''  24  &  25  Vict.  c.  96,  s.  31,  as  in  case  of  simple  larceny.  The  words 
"  burial  ground  "'  were  added  to  do  awaj'  with  a  doubt  expressed  by  Baron 
Bramwell  in  R.  v.  Jonex,  1858,  D.  &  B.  555,  as  to  whether  a  churchyard 
was  a   "public  place"  within  7  &  8  Geo.   4,   c.   29,  s.    44.      The  other 


THE    CRIMINAL    LAW  293 

whatsoever,  or  any  ^  metal,  or  any  utensil  or  fixture  of  what- 
ever material,  fixed  in  or  to  any  building  whatsoever,  or 

anything  made  of  metal  fixed  in  any  land,  being  private 
property,  or  for  a  fence  to  any  dwelling-house,  garden,  or 
area,  or 

in  any  square  or  street,  or  in  any  place  dedicated  to  public- 
use  or  ornament,  or 

in  any  burial  ground  ;  or 

{d.)  -who  steals,  or  cuts,  breaks,  roots  up,  or  otherwise 
destroys  or  damages,  with  intent  to  steal,  the  whole  or  any 
part  of  any  tree,  sapling,  or  shrub,  or  any  underwood,  if  the 
value  of  the  article  or  articles  stolen,  or  the  amount  of  the 
injury  done  exceeds  £5,  or  exceeds  the  value  of  £1,  if  the 
article  or  articles  stolen  or  damaged  grow  in  any  park, 
pleasure  ground,  garden,  orchard,  or  avenue,  or  in  ground 
adjoining  or  belonging  to  any  dwelling-house ;  or 

(e.)  ^  who  steals,  or  cuts,  breaks,  roots  up,  or  otherwise 
destroys  or  damages,  with  intent  to  steal,  the  whole  or  any 
part  of  any  tree,  sapling,  or  shrub,  or  any  underwood,  the 
value  of  the  thing  stolen,  or  the  amount  of  the  damage 
done,  being  a  shilling  at  the  least,  after  being  t^vice  sum- 
marily convicted  of  such  offence  ;  or 

(/.)  "*  who  steals,  or  destroys  or  damages,  with  intent  to 
steal,  any  plant,  root,  fruit,  or  vegetable  production,  growing 
in  any  garden,  orchard,  pleasure  ground,  nursery  ground, 
hothouse,  greenhouse,  or  conservatory,  after  having  been 
summarily  convicted  of  such  offence;  or 

{g.)  ■'  who  steals  any  ojsters  or  oyster  bruud  from  any 
oyster   bed,   laying,  or  fishery,  being  the  property  of  any 

judges  did  not  share  this  doubt.  The  present  enactment  does  not 
absolutely  remove  it,  as  there  are  many  churchyards  which  are  not  burial 
groun(l«.      However,  tlie  case  of  li.  v.  Joni-s  distinctly  decided  the  point. 

'    "  I..ead,  iron,  copper,  biass,  or  other  metal." 

-  24  &  '2')  V'icl.  c.  96,  h.  ',V2,  W.  The  section  is  rearranged  for  the 
Hake  of  brevity,  and  the  word  "grow"  Huljstituled  for  "grows"  to  meet 
the  grammar.  Tiie  change  also  repreKcnts  the  sense,  for  it  has  been  held 
that  in  estimating  the  damage  done  the  value  of  several  trees  njiired  at 
the  same  time  may  be  l>ut  together  :  /(".  v.  Shejiherd,  1S(58,   I  I.".  (".   K.  I  18 

■■   Ibid.  H.  -.VA. 

*   Ibid.  H.  -Mi. 

'■'  Ibid.  n.  '2U. 


294  A    DIGEST   OF 


other  person  ;iii(l  s\itHcientIy  marked  out  .•ind  known  as 
such  ;  or 

(h.)  ^  who  maliciously  or  fraudulently  abstracts,  causes  to 
be  wasted  or  diverted,  consumes  or  uses  any  electricity. 

^  Every  one  who  commits  any  of  the  offences  specified  in 
clauses  (c),  (d.),  (/.)  or  ((/.),  after  being  previously  convicted 
of  an}^  misdemeanour  indictable  under  24  &  25  Vict.  c.  9G,  or 
after  two  previous  summary  convictions  under  24  &  25  Vict, 
c,  96,  or  c.  97,  or  any  Act  mentioned  in  note  (8)  to  Article 
347,  is  liable  to  seven  years  penal  servitude. 


Article  854. 
thefts  punishable  with  imprisonment.^ 

^  Every  one  is  guilty  of  felony  and  is  liable  to  tw^o  years 
imprisonment  with  hard  labour,  who  steals  or  severs  with 
intent  to  steal  the  ore  of  any  metal  or  any  lapis  calaminaris, 
manganese,  or  iimndick,  or  an}'  wad,  black  cawke,  or  black 
lead,  or  any  coal  or  cannel  coal  from  any  mine,  bed,  or  vein 
thereof  respectively. 

''  Every  one  is  guilty  of  misdemeanour  and  is  liable  to  fine 
and  imprisonment  with  hard  labour  who  fraudulently  retains, 

^  45  &  46  Vict.  c.  56,  s.  2.S,  declares  that  every  such  person  shall  he 
*' guilty  of  simple  larceny  and  punishahle  accordingly."  "  Electi-icity "' 
is  defined  in  s.  32  as  meaning  "  Electricity,  electric  current  or  any  like 
agency."  Probably  the  latter  applies  only  to  electricity  used  com- 
mercially. It  would  hardly  apply  to  a  person  who  in  order  to  spoil  a 
philosophical  experiment  maliciously  caused  electricity  to  be  wasted. 

-  24  &  25  Vict.  c.  96,  s.  8  W.,  makes  this  provision  as  to  all  oHences 
punishable  under  the  Act  as  simple  larceny.  It  can  hardly  have  been 
intended  to  make  (e)  punishable  with  seven  or  five  years  penal  servitude, 
though  this  seems  to  be  its  eff"ect  if  it  is  to  be  taken  literally.  The 
ofifences  in  question  are  created  by  ss.  26,  31,  32,  33,  36.  The  case  of  a 
conviction  of  one  of  these  offences  after  a  previous  conviction  for  felony 
is  provided  for,  I  suppose,  by  7  &  8  Oeo.  4,  c.  28,  s.  1 1.  See  article  19, 
ante. 

■*  Other  similar  offences  punishable  summarily  will  be  found  in  Oke's 
Synopsis  under  the  title  Larceny  in  Vol.  I.  In  the  last  edition  of  this 
W'Oi'k  they  were  set  out  in  Art.  328. 

*  24  &  25  Vict.  c.  96,  s.  38. 

5  7  Will.  4  &  1  Vict.  c.  36,  s.  31.  See  s.  43  as  to  hard  lal)our,  and  s.  47 
for  definitions. 


THE   CRIMIXAL    LAW  295 


or  wilfully  secretes,  keeps  or  detains,  or  being  required  to 
deliver  up  by  an  officer  of  the  Post  Office,  neglects  or  refuses 
to  deliver  up,  a  post  letter  which  ought  to  have  been 
delivered  to  any  other  person,  or  a  post  letter-bag,  or  a  post 
letter  which  has  been  sent,  whether  found  by  him  or  another 
person. 

^  Every  one  commits  a  misdemeanour  and  is  liable  to 
eighteen  months  imprisonment  and  hard  labour  who  steals 
any  dog,  or  unlawfully  has  in  his  possession  or  on  his 
premises  any  stolen  dog,  or  the  skin  of  any  stolen  dog, 
knowing  such  dog  to  have  been  stolen,  or  such  skin  to  be 
the  skin  of  a  stolen  dog,  after  having  been  convicted  sum- 
marily of  any  such  offences  respectively. 

Article  355. 
opening  letters. 

-  Every  one  is  guilty  of  a  misdemeanour  and  is  liable  to 
a  fine  of  £50  or  imprisonment  with  ^hard  labour  for  six 
months  who,  not  being  in  the  employment  of  the  Postmaster- 
General,  wilfully  and  maliciously  with  intent  to  injure 
any  other  person  opens,  or  causes  to  be  opened,  any  *  letter 
which  ought  to  have  been  delivered  to  the  other  person  ;  or 

does  any  act  or  thing  whereby  the  due  delivery  of  such 
letter  to  such  other  person  is  prevented  or  imj^eded  ; 

provided  that  this  Article  does  not  appl}^  to  any  parent  or 
person  in  the  position  of  a  parent  or  guardian  of  the  person 
to  whom  the  letter  is  addressed. 

AUTICLE    .S5f). 
UNLAWKl  I.LV    l)REDGIN(i    FOR   OVSTEKS. 

^Everyone  is  guilty  of  a  misdemeanour  and  is  liable  l«i 

'  24  &  2.')  Vict.  c.  9«»,  H8.  IS,  19. 

■^  54  it  .');■)  Vict.  (;.  4(i,  8.  10  ;  the  prosecutioii  of  this  odL-iicf  must  lu-  l)y 
the  direction  of  the  I^oHtmuHtei'-Oeneral. 

"  Ah  to  hard  laJwur,  nee  Ihiil.  8.  12  (2)  and  7  Will.  4  &  1  Vict.  c.  ;<(j, 
M.  42. 

*  For  a  definition,  hc-c  .")4  iV  ."i."»  Vi<t.  c.  4G,  h.  |(»  ;  .'{S  Vict.  c.  22,  s.  10  ; 
47  &  4«  Vict.  c.  7».  MH.   19,  20. 

'  24  &  2.i  Vict.  c.  9(5,  b.  20. 


296  A    DIGA'ST  OF 


imprisonment  with  liard  labour  fur  tliree  months  who 
unlawfully  and  wilfully  uses  any  dredge  or  any  net,  instru- 
ment, or  engine  whatsoever,  within  the  limits  of  any 
oyster-bed,  laying,  or  fishery,  being  the  property  of  any  other 
person,  and  sufficiently  marked  out  or  known  as  such,  for 
the  purpose  of  taking  oysters  or  oyster  brood,  although  none 
shall  be  actually  taken ;  or  unlawfully  and  wilfully  drags 
upon  the  ground  or  soil  of  any  such  fishery,  with  any  net, 
instrument,  or  engine. 

Article  357. 

soliciting  to  commission  of  offences  under  the   post 
office  acts. 

^  Every  one  commits  a  misdemeanour  and  is  liable  to 
imprisonment  with  hard  -  labour  for  two  years,  who  solicits 
or  endeavours  to  procure  any  other  person  to  commit  a  felony 
or  misdemeanour  punishable  by  the  Post  Office  Acts. 

1  7  Will.  4  &  I  Vict.  c.  36,  s.  3G. 
-  Ibid.  s.  42. 


THE   CRIMINAL   LAW  297 


CHAPTER  XLI 

^OBTAIXING  PROPERTY  BY  PALSE  PRETENCES  AND 

OTHER  CRIMINAL  FRAUDS  AND  DEALINGS    WITH 

J'ROPERTY 

Article  358. 
obtaining  goods,  etc.,  v.y  false  pretences. 

Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  five  years  penal  servitude,  who 

(a.)  -  by  any  folse  pretence  obtains  from  any  other  person 
any  chattel,  money,  or  valuable  security  with  intent  to 
defraud,  or  who, 

{b.)  ^  with  intent  to  defraud  or  injure  any  other  person  by 
any  false  pretence,  fraudulently  causes  or  induces  any  other 
person  to  •*  execute  any  valuable  security,  or  to  write,  im- 
press, or  affix  his  name,  or  the  name  of  any  other  person,'' 
upon  any  paper  or  parchment,  in  order  that  the  same  may 
afterwards  be  made  or  converted  into,  or  used  or  dealt  with 
as,  a  valuable  security. 

It  is  not  an  off  once  to  obtain  by  false  pretences  any 
chattel  which  is  not  the  subject  of  larceny  at  common  law, 
but  it  is  immaterial  whether  such  a  chattel  so  obtained 
is  or  is  not  in  existence  at  the  time  when  the  false  pretence 
is  made  if  the  thing  when  made  is  obtaiiud  by  the  false 
[jretence. 

It  is  not  an  offence  to  obtain  credit  in  a  jiartiicrship  ac- 
"•ouiit  by  false  jn'etences  as  tu  the  amount  which  a  partner  is 
•  ntitled  to  charge  against  the  partnership  funds. 

'   :i  HiHt.  Cr.  Law,  160-2. 

-  '24  <t  2')  Vict.  c.  5Hi,  8.  88,  as  explained  by  the  cases. 

■*  Ihiil.  8.  90.  'I'his  Bcctioii  was  irieaiit  to  cover  such  <  a.-->-.-i  a^.  it.  v. 
I)aiii}<r,  1857,  7  Cox,  (J.  (J.  'M\:\  ;  I).  &  B.  :{07,  juid  greatly  cxtciiiLs  the 
'(III  law  on  the  subject.  See  Mr.  (JrcavcH's  note  to  the  sui.'tion  in  his 
Million  of  the  Acts. 

*   "  .Make,  accept,  endorse,  or  ilcstroy  the  whole  or  any  pait.  of." 

*'■  "  or  of  any  company,  firm,  or  co-partnership,  or  the  seal  of  any  body 
'.orporate,  company,  or  society." 


298  A    DIGEST   OP' 


Jlhtstnit'ioiis. 

(1.)  ^  A  obtains  two  pointers  wortli  £5  each  by  a  false 
pretence.     This  is  not  an  offence  within  this  Article. 

(2.)  -  A  orders  a  van  from  B,  and  gets  it  made  and  delivered 
by  falsely  pretending  to  be  agent  to  a  company.  This  is  an 
offence,  although  the  van  was  not  in  existence  when  the 
pretence  was  made. 

(3.)  -^  A  travels  as  agent  for  his  partners  and  obtains  commis- 
sion from  them  by  falsely  pretending  he  has  received  orders.  His 
commission  would  form  a  charge  on  the  partnership  funds. 
This  is  not  an  offence  within  this  Article. 


Article  359. 
definition  of  "false  pretence." 

The  expression  "  false  pretence,"  in  Article  358,  means  a 
f;\lse  representation  made  either  by  words,  by  writing,  or  by 
conduct,  that  some  fact  exists  or  existed,  and  such  a  repre- 
sentation may  amount  to  a  false  pretence,  although  a  person 
of  common  prudence  might  easily  have  detected  its  falsehood 
by  inquiry,  and  although  the  existence  of  the  alleged  fact 
was  in  itself  impossible. 

But  the  expre.ssion  "  false  pretence  "  does  not  include 

{a.)  a  promise  as  to  future  conduct  not  intended  to  be 
kept,  unless  such  promise  is  based  upon  or  implies  an  exist- 
ing fact  falsely  alleged  to  exist ;  or, 

ih.)  such  untrue  commendation  or  untrue  depreciation  of 
an  article  which  is  to  be  sold  as  is  usual  between  sellers 
and  buyers,  unless  such  untrue  commendation  or  untrue 
depreciation  is  niade  by  means  of  a  definite  false  asser- 
tion as  to  some  matter  of  fact  capable  of  being  positively 
determined. 

I/Iiisfrations. 

(1.)  *  A,  not  being  a  member  of  the   Universit}'  of  Oxford, 


1  B.  v.  Rohimm,  1859,  Bell,  34. 
^  R.  v.  Martin,  1867,  1  C.  C.  R.  56. 

•*  R.  V.  Evarui,  1862,  L.  &  C.  755.      I  am  unable  to  follow  the  rea?oning 
of  this  judgment. 

^  R.  V.  Barnard,  1887,  7  C.  &  P.  784.      The  defendant  said   he  was  a 


THE    CRIMINAL    LAW  299 

represents  himself  to  be  such  hy  wearing  a  student's  cap  and 
gown,  and  thereby  obtaining  a  pair  of  straps  from  a  tradesman 
in  Oxford.      This  is  a  false  pretence  by  conduct. 

(2.)  ^  A  presents  a  note  for  £5  as  a  good  note  for  that  amount 
knowing  that  the  bank  by  which  it  was  issued  had  stopped. 
This  is  a  false  pretence  by  conduct. 

(3.)  ^  A  gives  a  cheque  in  discharge  of  a  debt.  This  is  a 
representation  that  A  has  authority  to  draw  upon  the  bank 
for  the  amount  of  the  cheque,  and  that  the  cheque  is  a 
good  and  valid  order  for  the  payment  of  money.  If  these 
representations  are  untrue  to  the  knowledge  of  A,  and  if  he 
intends  to  defraud  and  obtain  goods  by  making  them,  he 
commits  the  offence  of  obtaining  goods  by  false  pretences,  but 
the  mere  giving  of  a  cheque  is  not  necessarily  a  representation 
that  the  drawer  has  funds  at  the  bank  to  meet  it. 

(4.)  '^  The  secretary  of  an  Odd  Fellows'  Lodge  tells  a  member 
that  he  owes  the  Lodge  13s.  %d.  and  thereby  obtains  that  sum 
from  him,  whereas  in  fact  he  owed  only  Is.  '2d.  This  is  a  false 
pretence,  though  an  inquiry  might  easily  have  been  made. 

(5.)  *  A  rt'presents  to  B  that  A  has  power  to  bring  back  B's 
husband  (who  has  run  away)  over  hedges  and  ditches,  and  that 
a  certain  stuff  which  A  has  is  sufficient  and  effectual  for  that 
purpose,  and  thereby  obtains  from  B  a  dress  and  two  sixpences. 
This  is  a  false  pretence,  although  the  alleged  fact  is  impossible. 

(6.)  "  A  tells  1>  that  A  is  going  to  pay  his  rent  on  the  1st  of 
March,  anrl  wants  £10  to  make  up  his  rent,  whereby  he  obtains 
£10  from  B.  This  statement  though  false  is  not  a  false 
pretence,  as  it  relates  to  something  intended  to  be  done  at 
a  future  time. 


iiieiiiher  of  Magdalen  College,  but  BoUand,  B. ,  said  he  would  have  left 
ihe  case  to  the  jury  on  the  mere  wearing  of  the  dress  if  iiotiiing  had  been 
said. 

•  Ptr  Conipton,  J.,  in  R.  v.  Eraw,  18r)9,  Bell,  C.  C.  192.  The  rest  of 
the  Court  seemed  to  be  of  tlie  same  opinion. 

-  II.  V.  Ilnzlfloii,  1874,  2  C.  C.  R.  \M.  See,  too,  B.  v.  Jackson,  1813, 
:{  Caiiii.,  :{70  ;  /.'.  V.  Parker,  18.37,  2  Moo.  1.  There  was  some  slight 
difference  of  opinion  for  ratlier  of  exjji'ession)  amongst  the  judges  in  this 
•  •UHe.  Tiu;  judges  were  anxious  to  point  out  tliat  to  give  a  (tjiecjue  on  a 
bank  where  the  ilrawer  has  no  balance  is  not  necessarily  an  oU'eiice,  as  he 
may  have  a  right  to  overdmw  or  a  reasonable  expectation  that  if  he  does 
his  drafts  will  be  honoured.  These  considerations  woidd  sconi  to  allect 
not  the  falsencKs  «>f  the  pretence,  but  the  defeiulant's  knowledge  of  its 
falKehoo<l   and   his   intent  to  ilefrand. 

■'  Woo//<i/-<  ('as, ,  1H.")0,  4  Cox,  C.  (J.  2.'.  I  :  I  D.n.  ").">!).  See,  loo,  A*,  v. 
y^-wo/y,  I8.'j8,  I).  &  v..  442. 

<   /.'.  V.  (iihM,  lH(;r),  L.  &  V,.  .')(I2. 

'•'  LetMCwte,  18«:»,  I.    .1   (•    :M9. 


300  A    DIGEST    OF 


(7.)  ^  A  falsely  tells  B  that  A  has  bought  skins,  and  wants 
£4  10s.  to  fetch  them  by  the  railway,  and  that  he  will  sell 
them  to  B  if  B  will  let  A  have  the  .£4  lOs.  on  account,  which 
B  does,  partly  because  B  believes  that  A  has  bought  the  skins, 
and  partly  because  B  believes  that  A  will  sell  the  skins  to  B. 
This  is  a  false  pretence,  as  part  of  it  alleges  falsely  an  existing 
fact. 

(8.)  -  A  obtains  money  from  B  by  promising  to  marry  her 
and  to  furnish  a  house  with  the  money,  representing  himself  to 
be  an  unmarried  man.  A  in  fact  is  married.  The  representa- 
tion that  A  was  unmarried  is  a  false  pretence,  though  the 
promises  based  upon  it  would  not  have  been  false  pretences 
without  it. 

(9.)  ^  A  tells  B  that  A  is  prepared  to  give  him  £100  on  his 
signing  a  document ;  on  his  doing  so  A  refuses  to  give  him 
more  than  £60.  A's  statement  is  a  false  pretence,  because  it  is 
equivalent  to  a  statement  that  the  money  was  ready  for  B  on 
his  signing  the  paper. 

(10.)  *  A  induces  B  to  lend  him  money  by  saying  that 
certain  spoons  are  of  the  best  quality,  that  they  are  equal 
to  Elkington's  A  (a  description  known  in  the  trade),  that  the 
foundation  is  of  the  best  material,  and  that  they  have  as  much 
silver  in  them  as  Elkington's  A.  These  words  being  construed 
as  mere  exaggeration  of  the  quality  of  the  spoons,  and  not  as 
containing  a  statement  of  a  definite  fact  as  to  the  quality  of 
silver  in  the  spoons,  are  not  a  false  pretence. 

(11.)  ^  A  induces  B  to  buy  a  chain  by  saying,  "It  is  15-carat 
gold,  and  you  will  see  it  stamped  fine  on  every  link.  It  was 
made  for  me,  and  I  paid  nine  guineas  for  it.  The  maker  told 
me  it  was  worth  £5  to  sell  as  old  gold."     The  chain  had  on  every 

1  B.  V.  West,  1858,  D.  &  B.  575. 

-  R.  v.  Jemmon,  1862,  L.  &  C.  157. 

3  B.  V.  Gordon,  1889,  23  Q.  B.  D.  354. 

*  R.  v.  B}-yan,  1857,  D.  &  B.  265.  This,  I  think,  is  the  true  view  of 
the  case.  Willes,  J.,  and  Braniwell,  B. ,  thought  the  conviction  should 
be  sustained  on  the  ground  that  the  representation  that  the  spoons  had  as 
much  silver  on  them  as  Elkington's  A  was  a  specific  false  pretence  as  to 
an  existing  fact.  Ten  other  judges  (Campbell,  C.J.,  Cockburn,  C.J., 
Pollock,  C.B. ,  Coleridge,  Cresswell,  Eric,  Crompton,  Crowder,  JJ.,  and 
Watson  and  Channel,  BB. )  all  said  in  different  words  that  the  language 
used  was  mere  puffery.  The  principle  does  not  appear  to  have  been 
doubted.  The  case  is  often,  but  I  think  wrongly,  supposed  to  decide 
that  a  misrepresentation  as  to  quality  cannot  be  a  false  pretence.  This 
depends  on  the  further  question  whether  the  representation  is  made  by 
means  of  alleging  the  existence  of  a  fact  which  does  not  exist.  R.  v. 
Foster,  1877,  2  Q.  B.  D.  301,  is  a  later  illustration  of  the  principle  of 
R.  V.  Bryan. 

»  R.  V.  Ardhif,  1871,  1  C.  C.  R.  301. 


THE    CRIMINAL    LAW  301 

link  the  mark  15-ct.     The  chain  in  fact  was  6-carat  gold,  worth 
in  all  £3  Os.  3d.     This  is  a  false  pretence. 

(12.)  ^  A  orders  and  consumes  food  in  an  eating-house  as  if 
he  were  able  to  pay  for  it,  which  he  is  not.  This  is  not  a  false 
pretence. 

Article  360. 

of  "obtaining." 

-  The  word  "  obtains,"  in  Article  358,  means  an  obtaining 
by  the  offender  from  the  owner,  with  an  intent  on  the  part 
of  the  offender  to  deprive  the  owner  permanently  and  en- 
tirely of  the  thing  obtained,  and  it  includes  cases  in  which 
things  are  obtained  by  a  contract  which  is  obtained  by  a 
false  pretence,  unless  the  obtaining  under  the  contract  is 
remotely  connected  with  the  false  pretence. 

^  Whoever,  by  any  false  pretence,  causes  or  procures  any 
money  to  be  paid,  or  any  chattel  or  valuable  security  to  be 
delivered,  to  any  other  person  for  the  use  or  benefit  or  on 
account  of  the  person  making  such  false  pretence,  or  of  any 
other  person,  with  intent  to  defraud,  is  deemed  to  have  ob- 
tained such  money,  chattel,  or  valuable  security  within  the 
meaning  of  Article  358. 

•*  If  the  person  from  whom  anything  is  obtained  by  a  person 
making  a  false  pretence  is  not  deceived  by  such  false  pre- 
tence, but  delivers  the  thing  intended  to  be  obtained  by  it, 
knowing  the  pretence  to  be  false,  such  thing  is  not  deemed 
to  have  been  obtained  by  such  pretence. 

•''  If  a  thing  is  obtained  by  the  joint  effect  of  several  false 
pretences,  any  one  of  which  is  a  false  pretence  within  the 
meaning  of  the  last  Article,  and  if  the  thing  would  not  have 
bf-en  obtained  without  that  fal.se  pretence,  it  is  deemed  to 
have  been  obtained  by  such  false  pretence. 

JIhislralioiiH. 
(1.)  "  A  draws  a  bill  upon  B  in  Ix»n(lf)n  and  gets  it  fliscftuntcd 


'   /.'.  V.  ./oH/^  [  1 898],  1  Q.  B.  119.         ■-*  IlhiRtrationB  ( I )  ((»). 

'  lA  fi  2.')  Vict.  c.  96,  H.  89.  '   IlliiHtnitioii  [~ ). 

•  IlluMtralion  (8).  »   /.'.  v.  darn II,  XHM,  D.  it  I'.  'IWl. 


302  A     DKlESr    OF 


by  C  in  Russia  by  falsely  pretending,  by  means  of  a  forged 
authority,  that  he  is  authorised  to  draw  upon  B  for  the  amount 
of  the  bill.  A  does  not  attempt  to  obtain  money  by  false 
pretences  from  B,  tliough  he  meant  that  C  should  forward  the 
draft  to  B,  and  sliould  obtain  payment  of  tlie  amount,  and 
though  his  act  if  done  in  England  would  have  been  an  obtain- 
ing by  false  pretences  from  C. 

(2.)  ^  A  by  a  false  pretence  obtains  from  B,  a  livery  stable 
keeper,  the  use  of  a  horse  for  the  day,  for  which  he  would  have 
been  charged  7*".  This  is  not  obtaining  goods  by  false  pretences, 
as  the  horse  was  returned. 

(3.)  "^  A,  by  false  pretences,  induces  B  to  enter  into  pai'tner- 
ship  with  him,  and  to  advance  .£500  as  part  of  the  capital  of  the 
concern.  B  treats  the  partnership  as  an  existing  one,  and 
endeavours  to  dispose  of  his  interest  in  it.  A  has  not  obtained 
X500  by  false  pretences,  as  B,  as  partner,  retained  his  interest 
in  it. 

(4.)  "'A  induces  B  to  buy  a  cheese  at  a  higher  price  than  it  is 
worth,  by  inserting  in  it  a  taster  of  superior  quality  to  the  rest 
of  the  cheese,  and  so  making  B  believe  that  the  whole  cheese  was 
of  the  same  quality  as  the  taster.  This  is  obtaining  money  by  a 
false  pretence. 

(5.)  •^A  induces  B  to  lend  him  £100  on  a  deposit  of  title- 
deeds  to  land,  by  falsely  pretending  that  a  house  has  been 
built  upon  it  worth  £300.  This  is  obtaining  £100  by  a  false 
pretence. 

(6.)  ••  A,  by  falsely  pretending  to  be  a  naval  officer,  induces  B 
to  enter  into  a  contract  to  board  and  lodge  him  at  a  guinea  a 
week,  and  under  this  contract  is  supplied  with  food  for  a  week. 
This  is  not  obtaining  food  by  false  pretences,  as  the  supply  of 
food  in  consequence  of  the  contract  is  too  remotely  the  result  of 
the  false  pretence  to  become  the  subject  of  an  indictment. 

(7.)  ''  A  makes  a  false  pretence  to  B  to  obtain  money,  whicli 
pretence  is  false  to  B's  knowledge.  B  pays  A  the  money  and 
prosecutes  him  for  obtaining  it  by  a  false  pretence.  This  is  not 
obtaining  money  by  a  false  pretence. 


1  R.  V.  Kilham,  1870,   1   C.  C.  R.  261. 

-  R.  V.  WaUon,  1857,  D.  &  B.  .348.  'I'lic  judges  guarded  in  their 
judgment  against  the  notion  that  fraudulently  inducing  a  man  to  enter 
into  a  partnership  could  in  no  case  be  witliin  the  statute,  as,  for  instance, 
in  the  case  of  the  alleged  existence  of  any  trade  whicli  was  a  false  pretence. 

3  R.  v.  Abbott,  1847,  1  Den.  273. 

*  R.  V.  Burgon,  1856,  D.  &  B.  11. 

"  R.  V.  Gardner,  1856,  D.  &  B.  4(». 

^  /?.  V.  MiU-<,  1857,  D.  &  B.  205.  It  was,  however,  an  attempt  to 
obtain  money  by  a  false  pretence. 


THE    CRIMINAL    LAW  303 

(8.)  ^  A  falsely  pretends  to  B  (1)  that  he  is  an  unmarried  man  ; 
(2)  that  he  will  marry  B  ;  (3)  that  if  B  will  give  him  £8  he  will 
furnish  a  house  for  himself  and  her  to  live  in  after  marriage. 
By  these  false  pretences  he  obtains  the  .£8.  He  is  deemed  to 
have  obtained  the  <£8  by  the  false  pretence  that  he  is  an  unmarried 
man,  which  is  a  false  representation  as  to  an  existing  fact. 

Article  361. 

intext  to  defraud. 

An  intent  to  defraud,  in  the  case  of  offences  against 
Article  358,  is  consistent  with  an  intent  to  undo  the  effect 
of  the  fraud  if  the  offender  should  be  able  to  do  so. 

I//u!if  ration. 

-  A  by  false  pretences  induces  B  to  let  him  have  some  carpets, 
intending  to  pay  for  them  if  he  should  be  able  to  do  so.  This  is 
an  intent  to  defraud. 

Ai{TiCLE  362. 

CHEATING    AT    PLAY. 

^  Every  one  is  deemed  guilty  of  obtaining  money  or  a 
valuable  thing  by  a  fiilse  preteiicu  with  intent  to  cheat  or 
defraud,  and  is  liabk-  U)  be  punished  accordingly,  who  wins 
from  any  other  perscjn  to  himself  (jr  any  other  or  others,  any 
sum  of  money  or  valuable  thing  by  any  fiaud  or  unlawful 
device,  or  ill  practice  in  jiiaying  at  oi-  with  cards,  dice 
table.s,  or  other  game,  or  in  bearing  a  part  in  the  stakes, 
wagers,  or  a<lveritures,  or  in  betting  (jn  the  sides  or  hands  of 
them  that  d<i  play,  <jr  in  wagering  on  the  event  of  any  game, 
sport,  j>a.stime,  or  exerc:ise. 

'   /^  V.  J f unison,  IHO'J,  L.  &  C.  I.')7. 

-    //.  V.  Xay/or,  iMli."),   I  ('.  (J.  H.   \. 

'  H  &  H  Vi<:t.  c.  |(»»,  H.  17.  Se<!  J{.  V.  //»/</>«//,  |,S(i(i,  Jjfll,  ( '.  (".  2M, 
for  (III  illiiMtnitioii  of  wlial  iloeH  nol  aiiiuuiil  to  n  "  ^uiiil-."  Ah  Ut 
"winning,"  it  liiw  Immmi  doiildcd  wlicllii-r  I  Ik;  iiioiioy,  Am;.,  iiiuhL  Im* 
a<:liially  olilaiiuf<i,  or  wln-llior  winning  tin-  ^iiini-  ]>y  a  falHo  iirvtuiici'  woiilit 
\te  within  On:  n^^rlion  if  the  hihcr  iffiiKoil  t<i  jiiiy  tin-  iiioiic\-  :  //,  \.  .l/r)*v, 
1856,  r>.  A  B.    104. 


304  A    DIGEST   OF 


Aim  CLE  863. 

OBTAINING    CREDIT,    ETC.,    BY    FALSE    PRETENCES. 

^  Every  one  commits  a  misdemeanour  and  is  liable,  upon 
conviction  thereof,  to  twelve  months  imprisonment  with  hard 
labour,  who 

(a.)  in  incurring  any  debt  or  liability,  obtains  credit  under 
false  pretences,  or  by  means  of  any  other  fraud  ;  or, 

(b.)  with  intent  to  defraud  his  creditors  or  any  of  them, 
makes  or  causes  to  be  made  any  gift,  delivery,  or  transfer  of 
or  any  charge  on  his  property ;  or 

(c.)  with  intent  to  defraud  his  creditors,  conceals  or  re- 
moves any  part  of  his  property  since  or  within  two  months 
before  the  date  of  any  unsatisfied  judgment  or  order  for 
payment  of  money  obtained  against  him. 

Article  364. 
concealing  deeds  and  incumbrances. 

2  Every  one  commits  a  misdemeanour  and  is  liable,  upon 
conviction  thereof,  to  two  years  imprisonment  and  hard 
labour,  who,  being  a  seller  or  mortgagor  of  land,  or  of  any 
chattels,  real  or  personal,  or  choses  in  action  conveyed  or 
assigned  to  a  purchaser,  ^  or  mortgagee,  or,  being  the  solicitor 
or  agent  of  any  such  seller  or  mortgagor, 

conceals  from  the  purchaser  any  settlement,  deed,  will, 
or  other  instrument  material  to  the  title,  or  any  incum- 
brance,  or, 

1  32  &  33  Vict.  c.  62,  s.  13:  The  Debtors  Act,  1869.  This  section 
applies  to  all  debtors  and  not  merely  to  bankrupts  and  liquidating  debtors. 
B.  V.   Rovland.^,   1882,  8  Q.  B.  D.  530. 

-  22  &  23  Vict.  c.  35,  s.  24.  The  Attornej'-General's  consent  is 
necessary  to  a  prosecution  for  this  offence.  Wilfully  making  an  affidavit 
under  the  Land  Transfer  Act  1875,  containing  a  statement  false  in  any 
material  particular,  is  a  misdemeanour  punishaVjle  with  two  years  imprison- 
ment with  hard  labour,  38  &  39  Vict.  c.  87,  s.  101.  As  to  certain  frauds 
on  the  registration  of  titles,  see  25  &  26  Vict.  c.  53,  ss.  105,  138  ;  and 
25  &  26  Vict.  c.  67,  ss.  44,  45. 

3  The  words  "or  mortgagee"  were  added  by  23  &  24  Vict.  c.  38,  s.  8. 


THE    CRIMINAL   LAW  305 

falsifies  any  pedigree  on  which  the  title  does  or  may 
depend, 

in  order  to  induce  him  to  accept  the  title  offered  or 
produced  to  him,  and  with  intent  to  defraud. 


Article  365. 
conspiracy  to  defraud  or  extort. 

Every  one  commits  the  misdemeanour  of  conspiracy  who 
agrees  with  any  other  person  or  persons  to  do  any  act  with 
intent  to  defraud  the  public,  or  any  particular  person,  or 
class  of  persons,  or  to  extort  from  any  person  any  money  or 
goods.  Such  a  conspiracy  may  be  criminal  although  the  act 
agreed  upon  is  not  in  itself  a  crime. 

^  An  offender  convicted  of  this  offence  may  be  sentenced  to 
hard  labour. 

Illustrations. 

The  following  are  instances  of  conspiracies  with  intent  to 
defraud  : — 

-  A  conspiracy  to  defraud  the  public  by  a  mock  auction. 

•*  A  conspiracy  to  raise  the  price  of  the  funds  by  false 
rumours. 

^  A  conspiracy  to  defraud  the  public  by  issuing  bills  in  the 
name  of  a  fictitious  bank. 

■'A  conspiracy  to  induce  a  person  to  buy  horses  by  falsely 
alleging  that  they  were  the  property  of  a  private  person  and  not 
of  a  horse  dealer. 

*^  A  conspiracy  to  induce  a  man  to  take  a  lower  price,  than 
that  for  which  he  had  .sold  a  horse,  by  representing  that  it  had 
been  discovered  to  be  unsound  and  resold  for  less  than  had  been 
given  for  it. 

'  A  conspiracy  to  defraud  a  partner  by  false  accounts,  th(> 
fraud  not  being  in  itself  criminal  when  it  was  conmiitted. 


'  14  &  15  Vict.  c.  100,  H.  29. 

^  l{.  V.  Liinin,  1H69,  1 1  Cox,  C.  C.  404. 

3  li.  V.  J)>.  li,rni<i<r,  \H\4,:\  .M.  k,  S.  (i7. 

*  /{.  V.  //:v,y,  17S'J,  2  KtiKt,  !'.  ('.  S.IK. 

'•  //.  V.  Knirir.k,  IK4.S,  .'.  (,).  15.  4!l. 

«  Carli-,/>:\  CoHi,  1S.")4,  I).  .V  I*.  XM. 

'  li.  V.    Warhnrloii,   IS7"i,   I  ( '.  C.  K.  '274. 


30G  A    DIGEST   OF 


^  A  conspiracy  to  defraud  generally  by  getting  a  settling  day 
for  shares  of  a  new  company. 


Article  866. 

pretending  to  exercise  witchcraft. 

-Every  one  commits  a  misdemeanour  and  mii.st,iipon  con- 
viction thereof,  be  imprisoned  for  a  year,  and  may  be  obliged 
to  give  sureties  for  his  good  behaviour  in  such  sum  and  for 
such  time  as  the  Court  thinks  fit,  who  pretends  to  exercise 
or  use  any  kind  of  witchcraft,  sorcery,  enchantment,  or  con- 
juration, or  undertakes  to  tell  fortunes,  or  pretends  from  his 
skill  or  knoAvledge  in  any  occult  or  crafty  science  to  discover 
Avhere  or  in  what  manner  any  goods  or  chattels  supposed  to 
have  been  stolen  or  lost  may  be  found. 

Article  367. 
cheating. 

Every  one  commits  the  misdemeanour  called  cheating,  who 
fraudulently  obtains  the  property  of  another  by  any  deceitful 
practice  not  amounting  to  felony,  which  practice  is  of  such 
a  nature  that  it  directly  affects,  or  may  directly  affect,  the 
public  at  large.  But  it  is  not  cheating  within  the  meaning 
of  thi.s  Article  to  deceive  any  person  in  any  contract  or 
private  dealing  by  lies  unaccompanied  by  such  practices  as 
aforesaid. 

•^  Any  person  convicted  of  cheating  or  fraud  punishable  at 
common  law  may  be  sentenced  to  imprisonment  with  hard 
labour. 

Illustrations. 

(1.)  The  following  are  instances  of  cheating  : — 

■*  Selling  by  a  false  weight  or  measure  even  to  a  single  person. 

1  R.  V.  Aspina/l,  1876,  1  Q.  B.  D.  730. 

-  9  Geo.  2,  c.  5,  s.  4.  Would  it  l)e  a  good  defence  to  an  indictment 
for  this  offence  to  prove  that  the  defendant  not  only  "pretended,"  but 
actually  practised  witchcraft  ?  As  to  witchcraft,  see  2  Hist.  Cr.  Law, 
430-6. 

3   14  &  In  Vict.  c.  100,  s.  29.  ^   R.  v.  Yoiukj,  1789,  3  T.  K.   In4. 

I 
t 
f 


THE   CRIMIXAL    LAW  307 

^  Selling  clothing  with  the  aluager's  seal  forged  upon  it. 

-  Selling  a  picture  by  means  of  an  imitation  of  the  name  of  a 
well-known  artist  inscribed  upon  it. 

"^  Maiming  oneself  in  order  to  have  a  pretext  for  begging. 

■*  Selling  unwholesome  bread  as  if  it  were  wholesome. 

(2.)  The  following  cases  are  instances  of  frauds  not  amounting 
to  cheating : — 

^  Delivering  short  weight  of  bread,  no  false  weights  or  tokens 
being  used. 

^  Receiving  barley  to  grind  and  delivering  a  mixture  of  oat 
and  barley  meal. 

'  Selling  as  a  "Winchester  bushel  a  sack  of  corn  which  is  not  a 
Winchester  bushel,  but  greatly  deficient. 


Article  368. 
servants  feeding  horses,  etc.,  against  orders. 

^  Every  servant  who,  contrary  to  the  orders  of  his  master, 
takes  from  his  possession  any  corn,  pulse,  roots  or  other  food 
for  the  purpose  of  giving  the  same,  or  of  having  the  same 
given,  to  any  horse  or  other  animal  belonging  to  or  in  the 
possession  of  his  master  is  guilty  of  misdemeanour,  and  the 
commission  of  such  offence  does  not  amount  to  larceny. 

If  upon  the  trial  of  any  servant  for  feloniously  taking  from 
his  master  any  corn,  pulse,  roots  or  other  food  consumable  by 
horses  or  other  animals  he  alleges  that  he  took  the  same 
under  such  circumstances  as  would  constitute  the  said 
misdemeanour  and  satisfies  the  jury  thereof,  they  may  return 
a  verdict  accordingly,  and  thereupon  the  Court  may  award 
imprisonment  with  hard  labour  for  three  months  or  may 
inflict  a  penalty  not  exceeding  five  pounds,  in  case  of  non- 
payment of  which  imprisonment  with  hard  labour  for  three 
months  may  be  imposed  unless  the  penalty  be  sooner  paid. 

'  1  RuBH.  Cr.  516. 

2  J{.  V.  C/o.<-i,  IH'iH,  I).  &  ]i.  4(50. 

T  1   Hawk.  P.  C.   I  OS;  2  Ruhh.  Cr.  -)!."». 

'  •-'  Kfisl  P.  C.  H2ii  ;   /(".  V.  Dixon,  ISI4,  3  M.  &  S.   I  1. 

'  A'.  V.  Knghlon,  \H'A,  I).  &  P.  .STO,  .')!.-). 

•>  H.  V.  llaywj*,  IS  I."),  4  .\I.  &  S.  214. 

^  /'iiirkrut/x  CfiMf,  I73.S,  2  Kant,  P.  C  SlS. 

''  2(i  &  27  Vict.  c.  103,  «.  1.      'I'luB  offence  \h  fiisd  piiniMliiiMe  Nimiinarily. 


308  A    DIGEST   OF 


Article  369. 
fraudulently  concealing  ore. 

^  Every  one  commits  felony  and  is  liable  upon  conviction 
thereof  to  two  years  imprisonment  with  hard  labour, 

who,  being  employed  in  or  about  any  mine,  takes,  removes 
or  conceals  any  ore  of  any  metal,  or  any  lapis  calaminaris, 
manganese,  inundick,  or  other  mineral  found  or  being  in  such 
mine,  Avith  intent  to  defraud  any  proprietor  of,  or  any 
adventurer  in,  any  such  mine,  or  any  workman  or  miner 
employed  therein. 

Article  370. 
taking  marks  from  public  stores. 

^  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  seven  years  penal  servitude, 

who,  with  intent  to  conceal  His  Majesty's  property  in 
any  stores  under  the  care,  superintendence,  or  control  of  a 
Secretary  of  State,  or  the  Admiralty,  or  any  public  depart- 
ment or  office,  or  of  any  person  in  the  service  of  His  Majesty, 
takes  out,  destroys  or  obliterates  wholly  or  in  part  any  mark 
described  in  the  first  schedule  to  the  Public  Stores  Act^l875 
(38  &  39  Vict.  c.  25),  or  any  mark  whatsoever  denoting  the 
property  of  His  Majesty  in  any  stores. 


Article  371. 

concealing  treasure  trove. 

^  Every  one  commits  a  misdemeanour  who  conceals  from  the 
knowledge  of  our  Lord  the  King  the  finding  of  any  treasure, 

1  24  &  25  Vict.  c.   96,  s.   .39.      Re-enacting  earlier  provisions.     Passed 
in  consequence  of  decision  in  /?.  v.   Webb,  18.S5,  1  Moo.  4,31. 

2  38  &  .39  Vict.  c.  25,  s.  5.     See,  too,  ante,  Art.  68  ;  this  Act  constitutes 
many  offences  triable  summarily,  as  to  which  see  Oke's  Synopsis,  p.  568. 

3  ,3rcl  Inst.  132.     And  see  R.  v.  Thoma-s  1863,  L.  &  C.  313. 


I 


THE   CRIMINAL    LAW  309 

that  is  to  say,  of  any  gold  or  silver  in  coin,  plate,  or  bullion, 
hidden  in  ancient  times,  and  in  which  no  person  can  show 
any  property.  It  is  immaterial  whether  the  offender  found 
such  treasure  himself,  or  received  it  from  a  person  who  found 
it,  but  was  isntiorant  of  its  nature. 


k 


310  A    DIGEST   OF 


CHAPTER  XLIT. 

^FRAUDS    BY  AGENTS,    TRUSTEES,   AND  OFFICERS  OF 
PUBLIC  COMPANIES— FALSE  ACCOUNTING 

Article  372. 

punishment  of  misdemeanours  in  this  chapter. 

Every  one  Avho  commits  any  of  the  misdemeanours  defined 
in  this  chapter,  except  in  Article  379a,  is  liable,  upon  con- 
viction thereof,  to  seven  years  penal  servitude. 

Article  373. 
"  misappropriate  "  defined. 

-  In  this  chapter  the  word  "  misappropriate  "  means  con- 
verting any  of  the  things  in  respect  of  which  the  offences 
defined  in  it  are  committed  to  the  use  or  benefit  of  the 
offender,  or  to  the  use  or  benefit  of  any  person  other  than 
the  person  by  or  for  whom  the  offender  was  intrusted  there- 
with. In  regard  to  each  of  the  offences  defined  in  Articles 
374,  375,  and  376,  it  is  immaterial  whether  the  offender 
was  intrusted  with  the  thing  in  respect  of  which  the 
offence  was  committed  solely,  or  jointly  with  any  other 
person. 

Article  374. 

conversion  under  the  larceny  act  1901. 

^  Every  one  commits  a  misdemeanour,  who 

being  entrusted,  either  solely  or  jointly  with  any  other 
person,  with  any  property,  in  order  that  he  may  retain  in 
safe  custody  or  apply,  pay,  or  deliver,  for  any  purpose  or  to 

»  3  Hist.  Cr.  Law,  1.50-160. 

-  This  article  is  simply  a  drafting  abridgment  from  the  sections  referred 
to  in  the  following  Articles. 

3   1  Edw.  7,  c.  10  (the  Larceny  Act  1901). 


THE    CRIMINAL    LAW  :U1 

any  person,  the  propert}"  or  any  part  thereof,  or  any  proceeds 
thereof;  or 

having,  either  solely  or  jointly  with  any  other  person,  re- 
ceived any  property  for  or  on  account  of  any  other  person  ; 

fraudulently  converts  to  his  own  use  or  benefit,  or  the  use 
or  benefit  of  any  other  person,  the  property  or  any  part 
thereof  or  any  proceeds  thereof. 

Nothing  in  this  article  applies  to  any  trustee  or  any 
express  trust  created  by  a  deed  or  "will,  or  any  mortgage  of 
any  property,  real  or  personal,  in  respect  of  any  act  done  by 
the  ^  trustees  or  mortgagee  in  relation  to  the  property  com- 
prised in  or  affected  by  any  such  trust  or  mortgage. 


Article  375. 

misappropriation  under  power  of  attorney. 

-  Every  one  commits  a  misdemeanour  who,  being  intrusted 
^vith  any  power  of  attorney  for  the  sale  or  transfer  of  any 
property,  fraudulently  sells  or  transfers,  or  misappropriates 
the  same,  or  any  part  thereof. 

Article  376. 

mlsappropriation  by  factors  or  agent.s. 

"^  Every  factor  or  agent  intrusted,  for  the  purpose  of  sale 
or  otherwise,  with   the  possession  of  any  ^  goods,  or  of  any 

'  As  tx;  trustees,  v.  yws/,  Art.  .37H,  p.  '^\'^. 

'  24  &  '17)  Vict.  c.  96,  s.  77. 

'  Ibid.  .s.  7S. 

'  Any  factor  or  agent  intrusted  as  mentioned  above,  "and  possessed  of 
any  sucli  document  of  title,  wliether  derived  immediately  fiom  tlie  owner 
of  Hucli  goods,  or  obtaine<l  by  reason  of  sucii  factor  or  agent  liaving  lieon 
intrusted  with  tlie  jjossession  of  tlie  goofls,  or  of  any  other  doi-ument  of 
title  thereto,  shall  be  deemed  to  have  been  intrusted  \\  itii  ihc  possession 
of  the  gfjods  represented  by  such  document  of  title  :  " 

a  factor  or  agent  is  ilccmed  to  Im;  in  possession  of  goods  whether  the 
.same  are  in  his  actual  custody  <jr  held  b}'  any  other  person  suliject  to  his 
control,  or  for  him  or  on  his  behalf  ; 

u  fa<:tor  or  agent  in  possession  of   sucit  goods  or  documents  is  taken  to 


312  A    DIGEST   OF 


document  of  title  to  goods,  commits  a  misdemeanour  who, 
contrary  to  or  without  the  authority  oi'  his  principal  and  Ibr 
the  use  or  benefit  of  himself  or  any  person  other  than  the 
person  by  whom  the  goods  were  intrusted  to  him,  and  in 
violation  of  good  faith, 

(a.)  1  makes  any  consignment,  deposit,  transfer,  or  delivery 
of  any  goods  or  document  of  title  so  intrusted  to  him  as 
and  by  way  of  a  pledge,  lien,  or  security  for  any  money  or 
valuable  security  thereon  borrowed  or  received,  or  intended 
to  be  thereafter  borrowed  and  received  by  him  :  or 

(b.)  ^  accepts  any  advance  of  any  money  or  valuable 
securiuy  on  the  faith  of  any  •'  contract  or  agreement  to  consign, 
deposit,  transfer  or  deliver  any  such  goods  or  document  of 
title. 

^  Provided,  in  each  case,  that  the  amount  for  which  such 
goods  or  documents  are  made  security  in  any  of  the  ways 
aforesaid  exceeds  the  amount  justly  due  to  such  agent  from 
his  principal  at  the  time  when  the  security  is  given,  together 
with  the  amount  of  any  bill  of  exchange  drawn  by  or  on 
account  of  such  principal  and  accepted  by  such  factor  or 
agent. 

have  been  intrusted  theiewith  by  the  ownei'  thereof  unless  the  contrary  is 
shown.      Ibid.  s.  79. 

^  ' '  Every  contract  pledging  or  giving  a  lien  upon  such  document  of 
title  as  aforesaid  is  deemed  to  be  a  pledge  of  and  lien  upon  the  goods  to 
which  the  same  relates."     24  &  25  Vict.  c.  96,  .s.  79. 

-  Where  any  loan  or  advance  is  bond  fide  made  to  any  such  factor  or 
agent  on  the  faith  of  any  contract  or  agreement  in  writing  to  consign, 
deposit,  transfer,  or  deliver  such  goods  or  documents  of  title,  and  such 
goods  or  documents  of  title  are  actually  received  by  the  person  making 
the  loan  or  advance  without  notice  of  the  factor's  or  agent's  want  of 
authority,  the  loan  or  advance  is  deemed  to  be  made  on  the  security  of 
the  goods,  though  the  goods  or  documents  of  title  are  not  actually 
received  by  the  person  making  the  advance  till  "the  period  subsequent 
thereto."  Ibid.  s.  79.  The  necessity  for  this  explanation,  which  is  taken 
from  part  of  s.  79,  is  not  very  obvious,  nor  do  I  understand  what  particular 
period  is  referred  to  by  the  concluding  words. 

■^  Any  contract  or  agreement,  whether  made  direct  with  such  factor  or 
agent,  or  with  any  clerk  or  other  person  on  his  behalf,  is  deemed  to  be  a 
contract  or  agreement  with  such  factor  or  agent.  Ibid.  s.  79.  Of  course 
it  is. 


THE    CRIMINAL    LAW  313 

Article  377. 

clerks,  etc.,  assisting  in  procuring  advances. 

^  Every  clerk,  or  other  person,  who  knowingly  and  wilfully 
acts  and  assists  in  making  any  '  security,  or  accepting  or 
procuring  any  advance  mentioned  in  Article  376,  commits  a 
misdemeanour. 

Article  378. 
fraudulent  trustees. 

^  Every  *  trustee  of  any  property  for  the  use  or  benefit, 
either  wholly  or  partially,  of  some  other  person,  or  for  any 
public  or  charitable  purpose,  who  with  intent  to  defraud  mis- 
appropriates the  same,  or  otherwise  disposes  of  or  destroys 
such  property  or  any  part  thereof,  commits  a  misdemeanour. 

A  public  purpose  is  such  a  purpose  as  would  be  recognised 
as  public  in  a  court  of  law,  and  not  a  purpose  the  execution 
of  which  is  a  matter  of  public  importance. 

lUustrations. 

^  The  trustees  of  a  savings  bank,  which  has  printed  rules,  one 
of  which  directs  the  manner  in  which  the  funds  are  to  be  invested, 
are  trustees  on  an  express  trust  created  })y  an  instrument  in 
writing,  but  not  for  a  public  purpose. 

*'The  purposes  of  an  institution  exempted  from  liability  to  the 
poor-rate  would  be  public. 

>  24  &  25  Vict.  c.  96,  s.  78. 

'^  "  Any  Huch  consignment,  deposit,  transfer,  or  (lolivery." 

3  n>ifl.  8.  KO. 

*  "TruHtc'c"  means  a  "  trustee  on  some  express  trust  created  by  some 
deed,  will,  or  instrument  in  writing,  and  sliull  iiutlude  the  heir  or  pi'i"soiial 
representative  of  any  Ku<;h  trustee  and  any  other  pei"son  ujion  or  U>  wliom 
the  duty  of  such  trust  sliall  have  devolve<l  or  come,  and  also  an  exei^utor 
and  lulministnitor,  and  an  oHieial  manager,  assignee,  li(|uidator,  or  otlier 
like  officer  acting  under  any  present  (6  Aug.  ISfil)  or  fuUire  Ad  relating 
to  joint  Hto<;k  comjianieH,  bankruptcy,  or  iiiHolveney  "  :    I  hid.  s.   !. 

'   //.  v.  Fhlchr,  IS«2,  L.  &  (;.    IS<». 

0  Ihid.   L.  fi.  C.  at  p.  -iO.-i. 


314  A    DIGEST   OF 


Article  379. 
frauds  by  directors  axd  public  officers.^ 

Every  director  or  public  officer  of  any  body  corporate  or 
public  company  commits  a  misdemeanour  who 

(a.)  ^  fraudulently  takes,  or  applies  for  his  own  use  or 
benefit,  or  for  any  use  or  purposes  other  than  the  use  or 
purposes  of  such  body  corporate  or  public  company,  any  of 
the  property  of  such  body  corporate  or  public  company ;  or 

(b.)  ^  as  such  receives  or  possesses  himself  of  any  of  the 
property  of  such  body  corporate  or  public  company,  other- 
wise than  in  payment  of  a  just  debt  and  demand,  and,  with 
intent  to  defraud,  omits  to  make,  or  to  cause  and  direct  to  be 
made,  a  full  and  true  entry  thereof  in  the  books  and  accounts 
of  such  body  corporate  or  public  company ;  or 

(c.)  *  with  intent  to  defraud,  destroys,  alters,  mutilates 
or  falsifies  any  book,  paper,  writing,  or  valuable  security 
belonging  to  the  body  corporate  or  public  company  ;    or 

makes  or  concurs  in  the  making  of  any  false  entry  ;  or 

^  The  following  frauds  similar  to,  but  more  special  than,  those  men- 
tioned in  the  text  are  punished  as  follows : — A  director,  otiicer,  or 
contributory  of  a  company  wound  up  under  the  Companies  Act,  186'2, 
destroying,  &c.,  or  falsifying  books,  &c.,  or  securities,  or  making  false 
entries  in  a  register  of  the  company'  with  intent  to  defraud  anj'  person, 
misdemeanour,  two  years  hard  labour,  25  &  26  Vict.  c.  89,  s.  166; — 
an  actuary,  &c. ,  or  other  person  holding  any  situation  in  a  savings  bank 
receiving  money  from  a  depositor,  &c. ,  and  not  duly  accounting  for  it, 
misdemeanour,  26  &  27  Vict.  c.  87,  s.  9  ; — a  railway  company  delivering 
a  mortgage  deed,  bond,  or  certificate  without  a  declaration  as  required  by 
the  Act  thereon,  and  any  officer  of  the  company  permitting  the  delivery 
thereof  without  the  declaration,  misdemeanour,  fine  and  imprisonment, 
29  &  30  Vict.  c.  108,  s.  15  ; — any  director  or  registered  officer  of  a  company 
signing  a  declaration,  account,  or  statement  under  the  Act  which  he  knows 
to  be  false,  misdemeanour,  fine  and  imprisonment,  29  &  SO  Vict.  c.  108, 
s.  16  ;  any  person  making  a  false  entry  in  a  contract  for  a  sale  of  shares  of 
a  joint  stock  banking  company,  misdemeanour,  31  &  32  Vict.  c.  119,  s.  5  ; 
any  person  signing  any  statement,  &c. ,  or  report  required  by  the  Regula- 
tion of  Railwa3's  Act  1868,  which  is  false  to  his  knowledge,  misdemeanour, 
line  and  imprisonment,  31  &  32  Vict.  c.  119,  s.  5;  the  like  as  to  any 
return  required  bj'  the  Regulation  of  Railways  Act  1871,  34  &  35  Vict. 
c.  78,  s.  10. 

2  24  &  25  Vict.  c.  96,  s.  81.  ^  Ibid.  s.  82, 

*  Ibid.  s.  83. 


THE    CRIMIXAL    LAW  315 

omits  or  concurs  in  oniitting  ;iny  material  [)arLicular  in  any 
book  of  account  or  other  document ;  or 

(d.)  ^  makes,  circulates,  or  publishes,  or  concurs  in  making, 
circulating,  or  publishing,  any  written  statement  or  account 
which  he  knows  to  be  false  in  any  material  particular  with 
intent  to  deceive  or  defraud  any  member,  shareholder,  or 
creditor  of  such  body  corporate  or  public  company  ; 

or  with  intent  to  induce  any  person  to  become  a  share- 
holder or  partner  therein,  or  to  intrust  or  advance  any  pro- 
perty to  such  body  corporate  or  public  company,  or  to  enter 
into  any  security  for  the  benefit  thereof 

The  offences  defined  in  clauses  («.)  and  (c.)  may  be  com- 
mitted by  members,  and  the  offences  defined  in  clauses  {h.), 
(c),  and  {d.)  by  managers  of  bodies  corporate  and  public 
companies,  as  well  as  b}-  the  directors  or  public  officers 
thereof 

Article  379a. 

-  Every  person  is  guilty  of  a  misdemeanour,  and  liable  to 
two  years  hard  labour  or  a  fine,  or  both,  who 

in  any  return,  report,  certificate,  balance-sheet,  or  other  ^ 
document  required  by  or  for  the  purpose  of  the  Companies 
Act  1900,  wilfully  makes  a  statement  false  in  any  material 
particular  knowing  it  to  be  false. 


Article  380. 

rule  of  evidence. 

^  No  one  is  entitled  to  rcfus<.'  U)  make  a  full  and  complete 
di.scovery  by  answer  to  any  statement  of  claim  for  discovery, 
or  to  answer  any  question  or  interrogatory  in  any  civil  pro- 
ceeding in  any  Court,  or  upon  the  hearing  of  any  matter  in 

'  24  &  2.>  Vict.  c.  96,  8.  84. 

-  03  &  04  Vict.  <:.  4H,  h.  28.  It  is  jxisHililc  that  tliiw  enactinent  may  be 
either  HUpplciiiciitcd  oi-  rei>la<:e(l  l)y  icgiHiatioii  (luiiiig  15(04. 

■*  ."^U'rh  ilocuinents  seciii  t<j  iiichido  proHpectUMcH,  ai't  ides  or  iiieiiuii'ainluiii 
of  ii«H(j<;iatioii,  ciitricH  in  rcgiHtcrH,  ami  cin-iihirs. 

'  24  A  2.'.  Vi.t.  c.  9(5.  h.  8.'». 


316  A    DIGEST   OF 


bankruptcy,  upon  the  ground  that  his  doing  so  might  tend  to 
show  that  he  had  connnitted  any  of  the  offences  defined  in 
Articles  374  to  379,  both  inclusive. 

No  one  is  liable  to  be  convicted  of  any  such  misdemeanour 
by  any  evidence  whatever  in  respect  of  any  act  done  by  him 
if  he  has  at  any  time,  previous  to  his  being  charged  with 
such  offence,  ^  first  disclosed  such  act  on  oath  in  consequence 
of  an}'  compulsory  process  of  any  Court  which,  in  1861,  was 
a  Court  of  either  law  or  equity,  in  any  action,  suit,  or  pro- 
ceeding honci  fide  instituted  by  any  party  aggrieved,  or  if  he 
has  -  first  disclosed  the  same  in  any  compulsory  examination 
or  deposition  before  any  Court  upon  the  hearing  of  any 
matter  in  bankruptcy  or  insolvency. 


Article  381. 
fraudulent  false  accounting. 

-  Every  one  commits  a  misdemeanour  who,  being  a  clerk, 
officer,  or  servant,  or  employed  or  acting  in  the  capacity  of  a 
clerk,  officer,  or  servant,  wilfully,  and  Avith  intent  to  defraud, 
destroys,  alters,  mutilates,  or  falsifies  any  book,  paper, 
writing,  valuable  security,  or  account  which  belongs  to  or  is 
in  the  possession  of  his  employer,  or  has  been  received  by 
him  for  or  on  behalf  of  his  employer ; 

or  wilfully,  and  with  intent  to  defraud,  makes  or  concurs 
in  making  any  false  entry  in,  or  omits  or  alters,  or  concurs 
in  omitting  or  altering,  any  material  particular  from  or  in 
any  such  book,  or  any  document  or  account. 

1  Ou  this  word,  which  was  not  in  the  earlier  Act,  5  &  6  Vict.  c.  39,  s.  6, 
see  R.  V.  Skttn,  1859,  Bell,  C.  C.  97. 

2  38  &  39  Vict.  c.  24,  s.  1. 


THE    CRIMINAL    LAW  317 


CHAPTER  XLIII 

RECEIVING 

Article  382. 
receiving  defined. 

^  A  PERSON  is  said  to  receive  goods  improperly  obtained  as 
soon  as  he  obtains  control  over  them  from  the  person  from 
whom  he  receives  them. 

Where  goods  are  received  by  a  wife  or  servant,  in  the  hus- 
band's or  master's  absence,  with  a  guilty  knowledge  on  the 
part  of  such  wife  or  servant,  the  husband  or  master  does  not 
become  a  receiver  only  by  acquiring  a  guilty  knowledge  of 
the  receipt  of  the  goods  by  such  wife  or  servant  and  passively 
acquiescing  therein,  but  he  does  become  a  receiver  with  a 
guilty  knowledge  if,  having  such  knowledge,  he  does  any  act 
approving  of  the  receiving  of  the  goods. 

Property  ceases  to  be  stolen  or  otherwise  improperly  ob- 
tained within  the  meaning  of  this  Article  as  soon  as  it  comes 
into  the  possession  of  the  general  or  -  special  owner,  and  if 
such  general  or  special  owner  delivers  it  to  some  one  who 
delivers  it  to  a  person  who  receives  it  knowing  of  the  pre- 
vious theft  or  other  obtaining,  such  receiving  is  not  an 
offence  within  this  Article. 

'  R.  V.  Wiley,  18.50,  2  Den.  37.  In  this  case  the  thieves  carried  stolen 
fowls  into  a  stable  belonging  to  the  receiver's  father.  Tlie  receiver  lighted 
them  in,  and  was  taken  in  the  act  of  bargaining  for  them  as  tiiey  lay  on 
the  ground  V)etween  the  three  men.  Eight  judges  to  four  held  tliat  tlic 
conviction  must  be  quashed  ;  substantially  they  all  agreed  in  the  proposi- 
tion given  in  the  text,  but  they  difl'eied  on  the  question  whether,  under 
the  circumstances,  the  receiver  had  the  control  of  the  fowls  or  not.  Tiiere 
was  also  some  difference  as  to  the  ellci^t  of  the  terms  in  wliich  the  question 
had  l)ecn  left  Uy  the  jury  by  the  chairman  of  sessions  who  stated  the  case. 
Vor  these  reasons  I  have  not  attempted  to  turn  the  case  into  an  illustra- 
tion. The  case  of  It.  v.  7'.  Smith,  IH/if),  I).  &,  P.  494,  is  somewhat  similar. 
See,  trK),  A'.  V.  /////,  1S49,  1  Den.  A'y.i.  In  It.  v.  MiUe.r,  XHM,  fi  Cox, 
C.  (J.  '.i'i'.i,  a  pcrHon  was  found  guilty  of  receiving  wlio  liad  never  hail 
pf)SHCSHion  of  tlie  goods  except  by  a  servant. 

■'!  It.  v.    ViUi-iLsky  [1892],  2  Q.  15.  .".97. 


318  A    DIGEST   OF 


Illustrations. 

(1.)  ^  A's  wife  in  A's  absence  receives  stolen  potatoes  knowing 
them  to  be  stolen.  The  jury  finds  that  A  "  afterwards  adopted 
his  wife's  receipt.''  This  finding  is  not  sufficient  to  sustain  a 
verdict  of  guilty,  as  it  is  consistent  with  ^V's  having  passively 
consented  to  what  his  wife  had  done  without  taking  any  active 
part  in  the  matter. 

(2  )  -  A's  wife  in  A's  absence  receives  stolen  goods  and  pays  the 
thief  6cl.  on  account.  The  thief  then  tells  A,  who  strikes  a 
bargain  witli  the  thief  and  pa3\s  him  the  balance.  ^V  has 
received  stolen  goods  knowing  them  to  be  stolen. 

(3.)  ^  B  steals  C's  property.  C  finds  it  in  B's  pocket,  restores 
it  to  B,  and  tells  B  to  sell  it  at  the  same  place  where  he  has  sold 
other  property  of  C's.  B  sells  it  to  A,  who  knows  that  it  has 
been  stolen.  A  commits  no  offence,  as  the  property  after  being 
stolen  has  got  into  the  owner's  hands. 

(4.)  ^  B  steals  goods  from  a  railway  to  which  they  have  been 
bailed.  B  then  sends  the  goods  to  A  by  the  same  railway.  A 
receives  them,  knowing  them  to  have  been  stolen,  from  the  rail- 
way porter  knowing  them  to  have  been  stolen.  A  policeman 
employed  by  the  railway  discovers  whilst  the  goods  are  in  transit 
that  they  have  been  stolen,  and  causes  them  to  be  delivered  to  A 
in  order  to  detect  him.  A  has  committed  no  offence  under  this 
Article. 

Article  383. 

receivixg  property  unlawfully  obtained. 

Every  one  commits  an  offence  amounting,  in  cases  (a.), 
(b.),  and  (d.)  to  felony,  and  in  case  (c.)  to  misdemeanour,  and 
in  case  (e.)  to  felony  or  misdemeanour  according  to  circum- 
stances, and  is  liable,  upon  conviction  thereof,  to  penal  servi- 
tude for  life  in  case  (a.),  and  to  penal  servitude  for  fourteen 

1  R.  V.  Dring,  1857,  D.  &  B.  329. 

2  R.  V.  Woodward,  1822,  L.  &  C.  122.  A  husband  can  receive  from  a 
wife  who-steals  on  her  own  account  in  his  absence  :  B.  v.  M'Athey,  1862, 
L.  &  C.  250. 

3  R.  v.  Dolan,  1855,  D.  &  P.  436. 

*  B.  v.  Schmidt,  1866,  1  C.  C.  R.  15.  Erie,  C.J.,  and  Mellor,  J.,  dis- 
sented, on  the  ground  that  the  company  were  the  innocent  agent  of  the 
thieves,  and  that  the  policeman  merely  looked  at  the  goods,  and  took  no 
possession  of  them.  This'i decision,  and  that  in  R.  v.  Bo/an,  uh.  ,sup., 
were  approved  and  followed  in  B.  v.    Villemky  [1892],  2  Q.  B.  597. 


THE    CRIMINAL    LAW  319 

years  in  case  (/>.),  and  to  penal  servitude  for  seven  years 
in  cases  (c),  {d.),  and  (e.),  who  does  any  of  the  following 
things  (that  is  to  say) : — 

(a.)  ^  who  receives  any  post  letter  or  post  letter-bag,  or 
any  chattel,  or  money,  or  valuable  security,  the  stealing, 
taking,  embezzling,  or  secreting  whereof  is  referred  to  in 
Article  350,  clause  (&.),  knowing  the  same  to  have  been 
feloniously  stolen,  taken,  embezzled,  or  secreted,  and  to  have 
been  sent  or  to  have  been  intended  to  be  sent  by  the 
post ;  or 

(b.)  '^  who  receives  any  chattel,  money,  valuable  security, 
or  other  property  whatever,  the  stealing,  taking,  extorting, 
obtaining,  embezzling,  or  otherwise  disposing  whereof  is  a 
felony,  either  at  common  law  or  by  the  24'  &  25  Vict.  c.  96 
(3  but  not  by  31  &  32  Vict.  116,  or  by  *  45  &  46  Vict, 
c.  75,  ss.  12,  16),  knowing  the  same  to  have  been  so  dealt 
with ;  or 

(c)  ^  who,  knowing  the  same  to  have  been  so  dealt  with, 
receives  any  chattel,  money,  valuable  security,  or  other  pro- 
perty which  may  have  been  stolen,  taken,  obtained,  converted, 
or  disposed  of  in  such  a  manner  as  to  amount  to  a  mis- 
demeanour by  24  &  25  Vict.  c.  96 ;  or 

{(i.)  *'  who  corruptly  takes  any  money  or  reward,  directly 
or  indirectly,  under  pretence  or  upon  account  of  helping  any 
})erson  to  any  chattel,  money,  valuable  security,  or  other 
property  whatsoever,  stolen,  taken,  obtained,  extorted,  em- 
bezzled, converted,  or  disposed  of  by  any  felony  or  mis- 
demeanour prohibited  by  24  &  25  Vict.  c.  96,  unless  he  uses 

'   7  Will.  4  &  1  Vicl.  c.  86,  s.  .So. 

-  24  <k  -25  Vict.  c.  96,  h.  91. 

'  Which  makes  stealing  hy  a  partner,  &c. ,  felony,  sec  xufira,  Art.  327  ; 
li.  V.  Smith,  187",  1  C.  C.  R.  266,  an  inBtructive,  but,  I  think  a  most  un- 
fortunate, (leciBion.  It  is  exactly  in  the  same  spirit  as  A*,  v.  Sa>fi,  1787, 
I  Lka.  468,  in  which  it  was  held  tliat  to  receive  a  hank-note  knowing  it  to 
Ix-  stolen  was  not  felony,  hecauso  hank-notes  are  not  the  suhjectof  larceny 
at  common  law.  See,  too,  /{.  v.  Uohiuson,  1859,  Hell  V.  ('.  .S4,  .\it.  358, 
liluHtration  (I ). 

'  'I'he  Married  Woman's  Property  Act  1882.  A',  v.  Stmt,,;  (liMMi)  2 
g.  H.  601  . 

•  24  &  25  V^ict.  c.  96.  s.  95. 

"  Ihi<l.  n.  lOl,  W.  ^in  the  caw;  of  males  under  eightciii.  In  .ill  oihcr 
canes  whippiii;.;  is  condni-il  to  m/ili;H  unilcr  sixteen). 


320  A    DIGEST   OF 


all  due  diligence  to  cause  the  offender  to  be  brought  to  trial 
for  the  same  ;  or 

(e.)  ^  who  without  lawful  excuse  has  in  his  yjossession 
property 

(i.)  stolen  out  of  the  United  Kingdom,  or 
(ii.)  -obtained  out  of  the  United  Kingdom    under 
such  circumstances  that  if  the  act  had  been  committed 
in   the   United    Kingdom   the    person   committing    it 
would  have  been  guilty  of  an  indictable  offence, 
knowing  that  it  was  so  stolen  or  obtained. 

This  offence  is  felony  or  misdemeanour  according  to 
whether  the  act  committed  outside  the  United  Kingdom 
would  have  been  felony  or  misdemeanour  if  committed  in 
England  or  Ireland. 

1  The  Larceny  Act  1896,  59  &  60  Vict.  c.  52. 

2  Taken,  extorted,  obtained,  embezzled,  converted,  or  disposed  of. 


THE    CRIMINAL    LAW  321 


CHAPTER  XLIV 

^FORGERY  IN  GENERAL 

Article  384. 
definition  of  forgery — intent  to  defraud. 

Forgery  is  making  a  fjxlse  document,  as  defined  in  Article 
385,  with  intent  to  defraud. 

An  intent  to  defraud  is  presumed  to  exist  if  it  appears  that 
at  the  time  when  the  false  document  was  made  there  was 
in  existence  a  specific  person,  ascertained  or  unascertained, 
capable  of  being  defrauded  thereb}^  and  this  presumption  is 
not  rebutted  by  proof  that  the  offender  took  or  intended  to 
take  measures  to  prevent  such  person  from  being  defrauded 
in  fact ;  nor  by  the  fact  that  he  had,  or  thought  he  had,  a 
right  to  the  thing  to  be  obtained  by  the  false  document. 

The  presumption  may  be  rebutted  by  proof  that  at  the 
time  when  the  false  document  was  made  there  was  no  person 
who  could  be  reasonably  supposed  by  the  offender  to  be 
capable  of  being  defrauded  thereby  ;  but  it  is  not  necessarily 
rebutted  by  proof  that  there  was  no  person  who  could  in  fact 
be  defrauded  thereby. 

It  is  uncertain  whether,  in  the  absence  of  any  evidence  as 
to  the  existence  of  any  person  who  can  be  defrauded  by  a  false 
document,  an  intent  to  defraud  will  or  will  not  be  presumed 
from  the  mere  making  of  the  document. 

An  intent  to  deceive  the  public  or  particular  persons,  but 
not  to  commit  a  particular  fraud  or  specific  wrong  upon  any 
particular  person,  is  not  an  intent  to  defraud  within  the 
moaning  of  this  Article. 

Illustrations. 

(1.)  -  A  makos  a  false  receipt,  the  effect  of  whicli,  if  the  receipt 
were  genuine,  would  Ije  to  render  B  accountahle  to  C  for  a  larger 

'  3  HiHt.  Cr.  Law,  180-188. 

2   R.  V.  rioardmnn,  1S.38,  2  Moo.  &  Rr.h.   147. 


322  A   DIGEST   OF 


sum  than  B  has  in  fact  received  on  C's  account.  A  is  presumed 
to  have  intended  to  defraud  although  the  receipt  was  not  used 
in  fact,  and  was  probably  not  intended  to  be  used  in  fact  for  the 
purpose  of  increasing  B's  liabilty. 

(2.)  ^  A  imitates  a  Bank  of  England  note  with  intent  to 
defraud  any  person  to  whom  it  may  be  passed,  but  without 
specially  intending  to  defraud  the  Bank  of  England.  This  is  an 
intent  to  defraud. 

(3.)  -  A  makes  a  false  acceptance  to  a  bill  of  exchange,  and 
puts  it  in  circulation,  intending  to  take  it  up,  and  actually  taking 
it  up  before  the  bill  is  presented  to  the  acceptor  for  payment. 
This  is  forgery  with  intent  to  defraud. 

(4.)  '^  A  being  directed  by  his  master  to  fill  up  a  blank  cheque 
with  an  amount  to  be  ascertained,  and  to  take  up  a  bill  with  the 
proceeds,  fills  it  up  for  a  larger  amount  and  keeps  the  differ- 
ence on  a  claim  that  it  was  due  to  him  for  salary.  Here  there  is 
an  intent  to  defraud. 

(5.)  ^  A  pays  to  his  credit  at  a  bank  a  false  promissory  note. 
The  bank  hold  guarantees  for  a  much  larger  amount.  Notwith- 
standing this  the  inevitable  conclusion  is  that  he  meant  to 
defraud. 

(6.)  ^  A  signs  B's  name  without  his  authority  to  two  deeds  of 
transfer  of  railway  shares,  by  one  of  which  the  shares  purport  to 
be  transferred  by  C  to  B,  and  by  the  other  to  be  transferred 
from  B  to  D.  '^  The  circumstances  are  such  that  no  one  can  be 
defrauded  by  these  deeds.  This  rebuts  the  presumption  of  an 
intent  to  defraud  raised  by  the  writing  of  B's  name. 

(7.)  ^  A  imitates  a  cheque  in  B's  handwriting  and  name  on  a 
bank  at  which,  to  A's  knowledge,  B  had  long  ceased  to  keep  an 


'  24  &  25  Vict.  c.  98,  s.  12,  would  now  apply  in  terms  to  such  a  case. 
In  R.  V.  Mazagora,  1815,  R.  &  R.  291,  the  judges  held  that  the  jury 
ought  in  such  a  case  to  have  found  an  intent  to  defraud  the  Bank  of 
England. 

2  R.  v.  Geach,  1840,  9  C.  &  R  499  ;  and  in  the  case  stated  by  Cole- 
ridge, J.,  in  R.  V.  Todd,  1843,  1  Cox,  C.  C.  57. 

3  R.  V.   Wilson,  1847,  1  Den.  284. 

•*  Compare  R.  v.  Jame.%  1838,  7  C.  &  P.  553,  with  R.  v.  Cooke,  1838, 
8  C.  &  P.  582-5.  I  have  taken  the  very  words  of  Patterson,  J.  "Inevit- 
able conclusion  "  is  a  little  less  strong  and  distinct  than  "  conclusive  pre- 
sumption of  law,"  an  expression  which  the  judge  seems  to  have  shrunk 
from. 

6  R.  V.  Marcus,  1846,  2  C.  &  K.  356. 

^  This  is  a  barely  possible  supposition,  though  Cresswell,  .J.,  held  that 
it  was  so  in  R.  v.  Marcus,  sup.  Rolfe,  B. ,  held  otherwise  in  R.  v. 
Hoatson,  1847,  2  C.  &  K.  777,  see  note. 

''  This  Illustration  is  founded  on  the  dictum  of  Maule,  J.,  in  R.  v.  Na/ih, 
J  852,  2  Den.  C.  C.  499. 


THE   CRIMINAL    LAW  323 

account.  The  jury  may  infer  from  this  an  absence  of  intent  to 
defraud. 

(8.)  ^  A  imitates  a  cheque  in  B's  name  on  a  bank  from  which 
B  had,  without  A's  knowledge,  withdrawn  his  balance  the  day 
before.  Here  the  fact  that  no  one  could  be  defrauded  by  the 
false  cheque  does  not  rebut  the  presumption  of  an  intent  to 
defraud. 

(9.)  -  A  makes  a  false  -will.  It  does  not  appear  whether  there 
was  or  was  not  any  person  who  could  be  defrauded  by  it.  It  is 
uncertain  whether  an  intent  to  defraud  is  or  is  not  to  be 
presumed. 

(10.)  ^  A  forges  a  diploma  of  the  College  of  Surgeons,  intend- 
ing to  induce  a  belief  that  the  document  is  genuine,  and  that  he 
is  a  member  of  the  College  of  Surgeons,  and  shows  it  to  two 
persons  with  intent  to  induce  that  belief  in  them.  This  is  not 
an  intent  to  defraud  within  the  meaning  of  this  Article,  though 
it  is  an  intent  to  deceive. 


Article  385. 
making  a  false  document  defined. 

To  make  a  false  document  is 

(a.)  ■*  to  make  a  document  purporting  to  be  what  in  fact  it 
is  not ; 

(?>.)  ^to  alter  a  document  without  authority  in  such  a 
manner  that  if  the  alteration  had  been  authorised  it  would 
have  altered  the  effect  of  the*  document ; 

(c.)  ^  to  introduce  into  a  document  without  authority, 
whilst  it  is  being  drawn  up,  matter  which,  if  it  had  been 
authori.sed,  would  have  altered  the  effect  of  the  document ; 

'  This  Illustration  is  founded  on  the  dictum  of  Maulc,  J.,  in  R.  v.  Nash, 
1852,  2  Den.  C.  C.  499. 

2  Tuf'*  Ca^^i,  184S,  1  Don.  C.  C.  319.  The  Court  were  e<jually  divided 
on  a  (|ue8tion,  whicli,  I  sulnTiit,  was  substantially  tlic  one  stated. 

•*  I{.  V.  Hod'jHon,  I  Kofi,  D.  <fe  I}.  .3.  It  woidd,  however,  l)c  an  offence 
under  the  Meflical  Act,  21  &  22  Vict.  c.  90,  s.  40.  This  Act  was  passed 
in  IH.'iH,  two  ye^irs  after  the  <lecision  of  It.  v.  Hodgson.  The  oU'ence  is 
"  falsely  pretending  to  he,  &c.,  a  surgeon,  &c.,"  and  the  penalty  recover- 
able on  Huinmary  conviction  is  £20.  The  forgery  of  a  diploma  voiild  seem 
to  deserve  more  severe  punishment. 

*   Illustration  (1). 

''  Illustrations  (2)  and  (3). 

"  Illustrations  (4)  and  (/>). 

Y    2 


324  A    DIGEST   OF 


(d.)  to  sign  a  document 

(i.)  in  the  name  of  any  person  without  his  authority, 
whether  such  name  is  or  is  not  the  same  as  that  of  the 
person  signing ; 

^  (ii.)  in  the  name  of  any  fictitious  person  alleged  to  exist, 
whether  the  fictitious  person  is  or  is  not  alleged  to  be  of  the 
same  name  as  the  person  signing  ; 

-  (iii.)  in  a  name  represented  as  being  the  name  of  a 
different  person  from  that  of  the  person  signing  it  and 
intended  to  be  mistaken  for  the  name  of  that  person  ; 

^  (iv.)  in  a  name  of  a  person  personated  by  the  person  sign- 
ing the  document,  provided  that  the  effect  of  the  instrument 
depends  upon  the  identity  between  the  person  signing  the 
document  and  the  person  whom  he  professes  to  be. 

But  it  is  not  making  a  false  document, 

*  to  procure  the  execution  of  a  document  by  fraud  ; 

^  to  omit  from  a  document  being  drawn  up  matter  which 
would  have  altered  its  effect  if  introduced,  and  which  might 
have  been  introduced,  •'unless  the  matter  omitted  qualifies  the 
matter  inserted  ; 

''  to  sign  a  document  in  the  name  of  a  person  personated  by 
the  person  who  signs  it,  or  in  a  fictitious  name,  provided  that 
the  effect  of  the  instrument  does  not  depend  upon  the  maker's 
identity  with  the  person  personated,  or  on  the  correctness  of 
the  name  assumed  by  him. 

®  It  is  not  essential  to  the  making  of  a  false  document  that 
the  false  document  should  be  so  framed  that  if  genuine  it 
would  have  been  valid  or  binding,  provided  that  in  cases  in 
which  the  forgery  of  any  particular  instrument  is  made  a 
specific  offence  by  any  statute,  the  false  document  must,  in 
order  that  the  offence  may  be  completed,  f;ill  within  the 
description  given  in  the  Act. 

1  Illustrations  (6)  and  (7). 

2  Illustration  (8). 

3  Illustration  (9). 

4  Illustrations  (10),  (11). 
s  Illustration  (12). 

6  Illustration  (13). 

7  Illustration  (14). 

8  Illustrations  (15)  (17). 


THE    ClUMiyAL    LAW  325 

^  The  fact  that  a  document  is  made  to  resemble  that  which 
it  purports  to  be  and  is  not,  is  evidence  for  the  consideration 
of  the  jury  of  an  intent  to  defraud,  but  is  not  essential  to  the 
making  of  a  false  document. 

-  Provided  that  in  cases  in  which  the  forgery  of  any  parti- 
cular instrument  is  made  a  specific  offence  by  any  statute, 
the  false  document  must  have  such  a  resemblance  to  the 
document  which  it  is  intended  to  resemble  as  to  be  likely  to 
deceive  a  common  person. 

Illustrations. 

(1.)  ^  A  conveys  land  to  B  in  fee.  Afterwards  A  and  C  draw 
up  and  execute  a  deed  purporting  to  be  of  earlier  date  than  the 
conveyance  to  B,  by  which  the  same  land  purports  to  be  let  to 
C  for  a  term  of  999  years.  The  second  deed  is  a  false  document, 
though  executed  by  A  and  C. 

(2.)  •*  A  obtains  a  blank  acceptance  from  B,  with  authority 
to  fill  it  up  for  any  amount  not  exceeding  £200.  A  fills  it  up 
for  £500.     This  is  a  false  document. 

(3.)  ^  A  persuades  his  servant,  "William  Wilkinson,  to  write 
his  name  across  a  stamped  paj^er,  so  as  to  appear  to  be  the  name 
of  the  acceptor  of  a  bill  of  exchange.  A  then  fills  up  the  bill 
and  addresses  it  to  Mr.  William  Wilkinson,  Halifax,  so  as  to 
make  the  bill  appear  as  if  it  had  been  drawn  upon  and  accepted 
by  a  different  William  Wilkinson.      This  is  a  false  document. 

(4.)  **  A  gets  B  to  sign  a  receipt,  and  afterwards  makes 
additions  to  it,  so  as  to  make  it  appear  that  a  larger  sum  was 
paid  to  B  than  had  actually  been  paid.  The  altered  receipt  is  a 
false  document. 

(5.)  "*  A,  employed  to  draw  up  B's  will,  inserts  in  it  legacies 
out  of  his  own  head.     The  will  is  a  false  document. 


'   Illu.stration  (18). 

'^  Illustration  (19). 

3  It.  V.  liiison,  18G9,  1  C.  C.  R.  200,  and  see  1  Hawk.  P.  C.  2G4. 

^  /■'.  V.  Hart,  IS.'iG,  1  Moo.  48U  ;  7  C.  &  P.  6;j2.  In  tliis  case  the 
wonlH  "  €200"  were  written  in  the  corner  of  the  hlank  acceptance,  and 
era.scd.  Littledale,  J.,  however,  told  the  jur}'  tliat  tlio  filling  uj)  the 
a<.cei>tance  for  a  greater  anxjunt  than  that  wliicli  waa  autiiorised  was 
forgery  :  li.  v.  Jiateman,  184.'5,  2  Hush.  Cr.  (32.3  ;  I  Cox,  C.  C.  ISG,  is  to 
the  same  eil'ect. 

*  /{.  V.  lihiikinmp,  1847,   1  Den.  C.  C.  27G  ;  2  Russ.  Cr.  G.'VJ. 

8  H.  V.  O'riJfUh-'t,  1858,  I).  &  1!.  .'j84.  It  is  not  easy  to  aay  why  this  case 
wa.H  rewerved. 

7   1  Hawk.  P.  C.  264. 


326  A    DIGEST   OF 


(6.)  ^  Sheppard  signs  a  draft  in  the  name  of  H.  Turner, 
Junior,  of  Noah's  Row,  Hampton  Court,  there  being  no  such 
phxce  or  person.      The  note  is  a  false  document. 

(7.)  -  Thomas  Brown  authorises  B  to  sign  a  promissory  note 
in  the  name  of  Thomas  Brown,  in  order  that  it  may  be  used 
as  the  note  of  a  diiferent  and  entirely  fictitious  Thomas  Brown. 
This  is  a  false  document,  whether  B  knew  or  not  of  the  use  for 
which  the  note  was  intended. 

(8.)  ^  B  agi'ees  to  give  A  time  for  the  payment  of  a  debt, 
if  A  will  get  his  mother-in-law,  C.  Watters  (whose  Christian 
name  is  unknown  to  B)  to  execute  a  promissory  note.  A  gets 
his  wife  to  sign  the  note  in  her  maiden  name,  "  A.  Watters," 
and  produces  the  note  to  B  as  the  note  of  his  mother-in-law. 
This  is  a  false  document. 

(9)  *  A,  personating  the  Hon.  A.  A.  Hope,  the  brother  of  the 
Earl  of  Hopetoun,  draws  a  bill  of  exchange  in  the  name  of 
A.  A.  Hope  on  a  person  to  whom  he  was  known  by  that  name, 
and  who  would  have  paid  it  if  A  had  really  been  A.  A.  Hope,  the 
brother  of  the  Earl  of  Hopetoun.  The  bill  is  a  false  document, 
though  the  person  on  whom  it  was  drawn  knew  and  gave  credit 
to  the  person  who  drew  it. 

(10.)  ^  A  gets  B  to  make  his  mark  to  a  deed  by  representing 
it  to  be  a  requisition  to  a  person  to  stand  for  a  seat  in  Parlia- 
ment.    A  does  not  make  a  false  document. 

(11)  ^A  reads  B  a  document  by  which  an  action  is  agreed 
to  be  settled  for  <£9.  B  agrees  to  sign  it  and  pays  the  £9. 
A,  before  B  signs  it,  alters  the  9  to  12.  A  does  not  make 
a  false  document. 

(12.)  "*  In  drawing  up  B's  will,  A  omits  a  legacy  to  C.  A  does 
not  make  a  false  document. 

(13.)  "In  drawing  up  B's  will,  A  omits  a  devise  of  an  estate 
for  life  to  C,  whereby  the  will  operates  to  give  D  an  estate  in 
possession,  and  not  in  remainder,  on  B's  death.  A  makes  a  false 
document, 

1  Sheppard's  Case,  1781,  1  Lea.  226. 

'^  R.  V.  Parke-s,  1796,  2  Lea.  775. 

3  B.  V.  Mahoney,  1854,  6  Cox,  C.  C.  487  ;  2  Russ.  Cr.  635. 

*  R.  V.  Hadjidd,  1803,  2  Euss.  Cr.  640.  This  is  the  well-known  case 
of  the  man  wlio  married  the  girl  known  as  the  Beauty  of  Buttermere. 

5  R.  v.  Collim,  1843,  2  M.  &  R.  461.  But  see  Mr.  Greaves'  remarks 
(2  Russ.  Cr. ,  718,  4th  ed.  note).  Mr.  Greaves  suggests,  I  think  rightly, 
that  this  was  a  case  of  forgery  by  an  innocent  agent,  B. 

«  R.  v.  Chadwich,  1844,  2  M.  &  R.  545,  and  see  2  Russ.  Cr.  626.  The 
case  was  decided  on  circuit  by  Rolfe,  B.  It  is  inconsistent  with  (6)  and  (c) 
above,  and  seems  unsatisfactory  in  itself. 

^  1  Hawkins,  P.  C.  265.  The  distinction  seems  idle,  as  every  omission 
of  a  legacy  must  increase  the  residue. 


THE    ClilMIXAL    LAW  327 

(1-i.)  ^  A,  personating  B,  draws  a  cheque  in  his  assumed  name 
of  B,  on  a  bank  with  which  in  his  assumed  name  he  had  opened 
a  genuine  account  by  the  actual  payment  of  mone}^  to  his  credit. 
A  does  not  make  a  false  document. 

(15.)  -A,  with  intent  to  detuiud,  counterfeits  the  will  of  a 
living  person.      A  is  guilty  of  forgoiy. 

(16.)^  A,  with  intent  to  defraud,  counterfeits  a  bill  of 
exchange  on  unstamped  paper,  a  stamp  being  necessary'  to  the 
validity  of  such  a  bill.      A  commits  forgery. 

(17.)  ■*  If  a  person  is  indicted  for  forging  a  bill  of  exchange, 
it  must  be  shown  that  the  document  forged  is  a  bill  of  exchange. 

(18.)  ^  A  is  charged  with  forging  a  Bank  of  England  note. 
If  the  resemblance  of  the  forged  to  the  real  note  is  sufficient 
to  deceive  a  common  person,  the  conviction  will  not  be  quashed, 
because  in  certain  important  particulars  the  two  documents 
differ. 

(19.)  **  A  forges  a  note  in  these  words,  "  I  promise  to  pay  for 
self  and  company  of  my  bank  in  England."  A  cannot  be  con- 
victed of  forging  a  Bank  of  England  note. 


'  Such,  I  submit,  would  be  the  law,  though  I  know  of  no  case  in  which 
the  precise  question  has  been  determined.  If  the  law  is  otherwise,  a 
person  passing  by  a  false  name  would  go  half  way  to  forgery  every  time  he 
signed  it.  If  a  man  passing  by  a  false  name  drew  many  bills  and  regidarlj- 
provided  for  them,  and  at  last  drew  one  for  which  he  could  not  and  ought 
to  have  known  that  he  could  not  provide,  I  do  not  think  he  would  be 
guilty  of  forgery  anj'  more  than  if  he  had  used  his  own  name.  The  use  of 
a  false  name  is  no  doubt  a  fact  from  which  an  intent  to  defraud  may  often 
be  inferred,  but  that  is  a  different  matter.  See  the  observations  of  Sir 
E.  H.  East  on  Aicklts'  Ca.se,  1787,  2  East,  P.  C.  969.  Since  the  first 
edition  of  this  work  was  published  the  case  of  Ji.  v.  Martin,  1879, 
r>  Q.  B.  D.  34,  has  been  decided,  which,  without  going  quite  as  far  as 
Illusti-ation  (14),  confirms  the  view  suggested  by  it.  In  that  case,  lioherl 
Martin,  for  some  reason  which  did  not  appear,  drew  in  jiayment  for  a 
pony  a  cheque  in  the  name  of  William  Martin  on  a  bank  where  he  liad 
ceased  to  have  an  account.  This  was  held  not  to  be  forgerj',  though  it 
was  obtaining  the  pony  by  a  false  pretence.  See,  too,  li.  v.  Dunn,  1705, 
1   Leach,  C.  (J.  59. 

-  Mnr],hy\-<  Cojie,  1787,  2  East,  P.  C.  949. 

•'  Jlawhyiicood:^  Ca^e,  178.3,  2  East,  P.  C.  955. 

■*  See  Bcveral  cases  collected  in  2  Ru.ss.  Cr.  (559-005,  all  of  which  turn 
on  the  question  whether  peculiarly  worded  instruments  answer  tlie 
Htatutoiy  de8cri|ition  given  in  tlie  indictment. 

•'  h'l/iot'M  CcvHt,  1777,  2  East,  P.  C.  951. 

•^  Joiift'H  CoMt,  2  East,  P.  C.  952.  lie  niiglit  however  be  convicted,  if 
he  changed  such  u  document,  of  o)>taining  g(jo<ls  )>y  false  pretences. 


328  A    DIGEST   OF 


Article  386. 

"  document." 

The  word  document  m  Articles  384  &  385  does  not  in- 
clude trade-marks  or  other  signs,  though  they  may  be  written 
or  printed. 

Illustratio7is. 

(1.)  ^  A  paints  a  picture,  and  intending  to  represent  that  it 
was  painted  by  an  eminent  artist,  writes  that  artist's  name  in 
the  corner.      This  may  be  a  cheat,  but  is  not  forgery, 

(2.)  ^  A  prints  a  number  of  wrappers  imitating  advertisements 
in  which  egg  powders  were  wrapped  for  sale  by  B,  their  maker. 
He  incloses  spurious  egg  powders  in  the  wrappers,  and  sells 
them.  This  is  not  forgery,  though  it  is  obtaining  money  by  false 
pretences. 

1  R.  V.  Closs,  1858,  D.  &  B.  460. 

2  li.  V.  Smith,  1858,  D.  &  B.  566.  It  would  seem  as  if  in  this  case  tlie 
element  wanting  to  complete  the  offence  was  the  intent  to  defraud  by 
means  of  the  document,  rather  than  the  absence  of  a  document  capable  of 
being  forged  ;  the  offence  lay  in  selling  spurious  as  real  powders.  The 
wrappers  without  the  powders  could  ha^•e  no  effect  whatever.  The  essence 
of  a  forgery  is,  that  the  document  itself  should  be  made  the  instrument  of 
fraud. 


THE   CRIMINAL    LAW  329 


CHAPTER  XLV 

1  punishment  of  particular  forgeries 
Article  387. 
"utter,"  "resemble,"  "forge." 

'  Ix  this  chapter  the  word  "  utter  "  includes  "  offer,  dispose 
of,  and  put  off;"  and  when  it  is  stated  that  any  uttering  is 
an  offence,  uttering  with  knowledge  of  the  character  of  the 
thing  uttered  is  intended. 

The  word  ''  resembling  "  means  "  made  or  apparently  in- 
tended to  resemble." 

The  word  "  forge  "  includes  "  alter." 

^  "  Having  in  possession  "  includes  knowingly  and  wilfully 
having 

(a.)  in  the  possession  or  custody  of  any  other  person, 

(h.)  in  any  place  for  the  use  or  benefit  of  the  possessor  or 
any  other  person. 

*  3  Hist.  Cr.  Law,  180-8.  The  following  forgeries  among  otliers  have 
been  made  penal  by  the  following  statutes  : — Forging  certificates  relating 
to  quarantme,  F.  G  Ceo.  4,  c.  78,  s.  25  ;  forging  stamps  on  plate,  F.  7  &  8 
Vict.  c.  22,  s.  2  ;  forging  a  seal,  &c. ,  purporting  to  be  sealed,  &c. ,  under 
this  Act,  F.  8  &  9  Vict.  c.  113,  s.  4;  forging  a  certificate  under  the 
Crown  Cases  Act,  1848,  F.  11  &  12  Vict.  c.  78,  s.  6  ;  forging  a  proclama- 
tion or  certificate  annexed  thereto,  &c.,  F.  31  &  32  V^ict.  c.  37,  s.  4  ; 
forging  certificates  of  transfer  of  stocks  from  England  to  Ireland,  F.  33 
&  34  Vict.  c.  58,  s.  6  ;  forging  a  licence,  &c.,  under  the  Explosives  Act, 
1875,  M.  38  V^ict.  c.  17,  s.  81  ;  forging  a  statement  in  a  certificate  of 
competency  under  the  Coal  Mines  Regulation  Act,  1887,  50  &  51  Vict, 
c.  5«,  H.  32. 

-  These  are  mere  drafting  abridgments.  In  tlie  Act  tlie  words  "  utter, 
offer,  dispose  of,  and  put  off,"  "  resembling  and  made,  or  ajijiarently  in- 
tended to  resemble,"  and  "  forge  and  utter,"  are  invariably  coupled 
together.  The  meaning  of  the  word  "utter"  was  much  discussed  in 
/'.  v.  /oM,  1852,  2  Den.  475,  in  which  it  was  held  to  Ije  an  uttering  to 
produce  a  forged  receipt  for  inspection,  and  in  order  to  lead  the  ]M'rHon  to 
whom  it  wa«  produced  to  iMilieve  that  the  person  pnxhuing  it  had  paid 
his  rents. 

3  24  &  25  Vict.  c.  98,  s.  45,  much  altridgcd. 


330  A    DIGEST    OF 


Article  388. 
forgeries  punishable  with  penal  servitude  for  life. 

Every  one  commits  felony,  and  is  liable  u})<)n  conviction 
thereof  to  penal  servitude  for  life,  who 

(a.)  ^  forges,  counterfeits,  or  utters  an}-  of  the  seals  men- 
tioned in  the  note  -  hereto ;  or 

forges  or  counterfeits  the  stamp  or  impression  of  any  such 
seal ;  or 

utters  any  document  or  instrument  whatsoever  having 
thereon  or  affixed  thereto  ; 

(i.)  the  stamp  or  impression  of  any  such  forged  or  counter- 
feited seal ;  or 

(ii.)  any  forged  or  counterfeited  stamp  or  impression 
resembling  the  stamp  or  impression  of  any  of  the  seals 
mentioned  in  the  note  hereto ;  or 

forges  or  utters  any  document  or  instrument  having 
any  of  the  said  stamps  or  impressions  thereon  or  affixed 
thereto;  or 

(b.)  who  forges  or  utters  with  intent  to  defraud, 

^  any  transfer  of  any  *  stock  mentioned  in  the  note,  any 
power  of  attorney  for  transferring  any  share  or  interest  in 
any  such  stock,  or  for  receiving  dividends  thereon ; 

•''any  India  bond,  or  any  bond,  debenture,  or  security 
issued  or  made  under  the  authority  of  any  Act  of  Parliament 
relating  to  India,  or  any  indorsement  thereon  or  assignment 
thereof; 

1  24  &  25  Vict.  c.  98,  s.  1. 

2  The  Great  Seal  of  the  United  Kingdom,  His  Majesty's  Privy  Seal, 
any  Pri\'y  Signet  of  His  Majest}',  His  Majesty's  Royal  Sign  Manual,  anj' 
of  His  Majesty's  seals  appointed  by  the  24th  Article  of  the  Union  between 
England  and  Scotland,  to  be  kept,  used,  and  continued  in  Scotland,  the 
Great  Seal  of  Ireland  and  the  Privy  Seal  of  Ireland. 

3  24  &  25  Vict.  c.  98,  s.  2. 

*  "Any  share  or  interest  of  or  in  any  stock,  aniniity,  or  other  public 
fund  which  now  is  or  liereafter  may  be  transferable  at  the  Bank  of 
England,  or  at  the  Bank  of  Ireland,  or  of  or  in  the  capital  stock  of  any 
body  coi-porate,  company,  or  society  which  now  is  or  hereafter  may  be 
established  by  charter,  or  by,  under,  or  by  virtue  of  any  Act  of  Parlia- 
ment." 

^  24  &  25  Vict.  c.  98,  s.  7. 


THE    CRIMINAL    LAW  331 

^  any  exchequer  bill,  exchequer  bond,  or  exchequer  deben- 
ture, any  endorsement  thereon  or  assignment  thereof,  or  any 
receipt  or  certificate  accruing  thereon ; 

-  any  ^  bank-note  or  any  endorsement  thereon  or  assign- 
ment thereof; 

^  any  stock  certificate  or  coupon,  or  any  document  pur- 
porting to  be  a  stock  certificate  or  coupon  issued  in  pursuance 
of  Part  V.  of  the  National  Debt  Act,  1870  (33  &  84  Vict. 
c.  71),  or  of  any  former  Act ; 

^any  register,  certificate,  transfer,  &c.,  under  the  Act 
enabling  commissioners  to  grant  annuities  ; 

*"  any  deed,  bond  or  writing  obligatory,  or  any  assignment 
thereof  at  law  or  in  equity,  or  any  name,  handwriting,  or 
signature  purporting  to  be  that  of  any  attesting  witness 
thereto  ; 

"  any  will,  codicil,  or  testamentary  instrument ; 

^  any  bill  of  exchange  or  promissory  note,  or  any  accept- 
ance, endoi^sement,  or  assignment  of  either  respectively  ; 

^  any  undertaking,  order,  warrant,  authority,  or  request, 
for  the  payment  of  money,  or  for  the  delivery  or  transfer  of 
any  goods  or  chattels,  or  of  any  note,  bill,  or  security  for  the 

'  24  &  25  Vict.  c.  98,  s.  8.  "  Exchequer  Bill "  includes  "  Treasury 
Bill "  :  see  40  Vict.  c.  2,  s.  10. 

^  Ibid.  8.  12. 

^  ' '  Any  note  or  bill  of  exchange  of  the  Governor  and  Company  of  the 
Bank  of  England,  or  the  Governor  and  Company  of  the  Bank  of  Ireland,  or 
of  any  otiier  body  corjjorate,  company,  or  persons  carrying  on  tiie  business 
of  bankers,  commonly  called  a  bank-note,  a  bank  bill  of  exchange,  or  a 
bank  post  Vjill. " 

^  3:j  &  34  Vict.  c.  58,  s.  3  (incorporated  with  24  &  25  Vict.  c.  98)  ;  and 
see  88.  4-6,  as  to  personation  of  owners  of  stock,  engraving  plates  for 
certiKcates,  and  forgery  of  certificates  of  transfer. 

ii  2  &  3  Will.  4,  c.  59,  s.  19. 

0  24  t  25  Vict.  c.  98,  s.  20. 

7  Ibid.  8.  21. 

*  Ibid.  8.  22.  A  agrees  to  pay  B  for  goods  by  liis,  A's,  acceptance,  and 
tliat  he,  A,  will  accept  it,  and  procure  its  endcjrscment  by  C  B  sends  a 
fonn  for  acceptance  accordingly,  but  witli  no  ilrawcr's  name.  A  accepts 
it  an<l  forges  (J's  cndorHcment  to  it.  He  cannot  be  indicted  under  tills 
Mection,  but  jirobiibiy  miglit  be  convicte<l  of  a  (.'onimon  law  foi-gery  :  A',  v. 
llur/xr,  1881,  7  Q.  B.  li.  78. 

"  Ibid.  8.  23.  A«  to  what  is  not  a  receipt,  see  11.  v.  Frank,  'JIT  :  1870, 
1  < '.  f.  B.  217.  An  I  ()  U  may  be  an  undertaking  for  payment  of 
money:  /.'.  v.  C/i'tjiihirx,  1N7I,  1  C.  ('.  K.  341.  A  turn|>iki-  lickft  ia  u 
rectijU  :    A',  v.  Filch,  1802,  L.  &  C  159.     A  liaiik  puMs  liook  is  an  account- 


332  A    DIGEST   OF 


payment  of  money,  or  for  procuring  or  giving  credit,  or  any 
endorsement  on  or  assignment  of  any  such  document,  any 
accountable  receipt,  acquittance,  or  receipt  for  money  or  for 
goods,  or  for  any  note,  bill,  or  other  security  for  the  payment 
of  money,  or  any  endorsement  on  or  assignment  of  any  such 
accountable  receipt ; 

^  any  court  roll,  or  copy  of  any  court  roll,  relating  to  any 
copyhold  or  customary  estate  ;  or 

(c.)  -who  obliterates,  adds  to,  or  alters  the  crossing  on 
any  cheque  or  draft  crossed  with  the  name  of  a  banker,  or 
with  two  transverse  lines  with  the  words  "  and  Company," 
or  any  abbreviation  thereof,  or  utters  any  cheque  or  draft  so 
dealt  with,  knowing  that  it  is  so  dealt  with  ;  or 

(d.)  ^  who  does  any  of  the  following  things  to  any 
register  of  births,  baptisms,  marriages,  deaths,  or  burials 
authorized  or  required  by  law  for  the  time  being  to  be  kept 
(that  is  to  say) : 

(i.)  destroys,  defaces,  or  injures  any  such  register,  or 
causes  or  permits  any  such  register  to  be  so  dealt  with ;  or 

(ii.)  forges,  or  fraudulently  alters,  in  any  such  register 
any  entry  relating  to  any  birth,  baptism,  marriage,  death,  or 
burial ;  or 

(iii.)  does  any  of  the  things  above  mentioned  to  any  part  of 
any  such  register,  or  to  any  certified  copy  of  any  such  register, 
or  to  any  part  of  any  such  certified  copy  ;  or 

(iv.)  knowingly  and  unlawfully  inserts,  or  causes  or  per- 
mits to  be  inserted  in  any  such  register,  or  in  any  certified 
copy  thereof,  any  false  entry  of  any  matter  relating  to  any 
such  fact,  or  gives  any  false  certificate  relating  thereto  ;  or 

(v.)  certifies  any  writing  to  be  a  copy  or  extract  from 
any  such  register,  knowing  such  writing,  or  the  part  of  the 


able  receipt:  i?.  v.  Sinith,  1862,  L.  &  C.  168  :  B.  v.  71/oorf?/,  1 862,  L.  &  C. 
173.  A  guarantee  against  negligence  and  dishonesty  is  an  "undertaking 
for  the  payment  of  money":  li.  v.  Joj/ce,  1865,  L.  &  C.  576.  A  pawn- 
broker's ticket  is  a  warrant  for  the  delivery  of  goods  :  Ji.  v.  Morrison, 
1859,  Bell,  C.  C.  158. 

1  24  &  25  Vict.  c.  98,  s.  30. 

2  Ibid.  s.  25. 

3  Ibid.  s.  36. 


THE    CRIMIXAL    LAW  333 

register  of  which  it  is  a  copy,  to  be  false  in  any  material 
particular  ;  or 

(vi.)  who  forges  the  seal  of  or  belonging  to  any  register 
office  or  burial  board  ;  or 

(vii.)  who  utters  any  such  register,  entry,  certified  copy, 
certificate,  or  seal,  knowing  the  same  to  be  false,  forged,  or 
altered,  or  any  copy  of  any  entry  in  any  register,  knowing 
the  entry  to  be  forged ;  or 

(e.)  ^  who  does  any  of  the  following  things  to  any  copy  of 
any  register  required  by  law  to  be  transmitted  to  any 
registrar  or  other  officer  (that  is  to  say) : 

(i.)  knowingly  and  wilfully  inserts,  or  causes  or  permits  to 
be  inserted  therein,  any  false  entry  of  any  matter  relating  to 
any  -  baptism,  marriage,  or  burial ; 

(ii.)  forges  or  utters  any  such  copy ; 

(iii.)  knoAvingly  and  wilfully  signs  or  verifies  any  such 
copy,  knowing  any  part  of  it  to  be  false ; 

(iv.)  unlawfully  destroys,  defaces,  or  injures  any  such  copy  ; 

(v.)  unlawfully  and  for  a  fraudulent  purpose  takes  any 
such  copy  from  its  place  of  deposit,  or  conceals  it ;  or 

(/.)  ^  who  demands  or  endeavours  to  have  any  share  or 
interest  in  *  stock  transferred,  or  to  receive  any  dividend  or 
money  payable  in  respect  thereof,  by  virtue  of  any  forged 
power  or  authority,  knowing  it  to  be  forged  ;  or 

^  demands  or  endeavours  to  obtain  or  receive  any  share 
or  interest  of  or  in  any  stock,  as  defined  in  the  National 
Debt  Act,  "1870  (33  &  34  Vict.  c.  71),  or  to  receive  any 
dividend  or  money  payable  in  respect  thereof,  by  virtue  of 
any  forged  or  altered  certificate  or  coupon,  knowing  it  to  be 
forged ;  or 

(f/.)  ''  who  commits  any  felony  which  was  punishable  by 
death  before  the  1  Will.  4,  c.  GO,  and  which  is  not  otherwise 

'  24  &  25  Vict.  c.  98,  b.  37. 

2  The  word  "  birth  "  scemH  to  Ijo  wiiiitcd  here. 

3  24  &  25  Vict.  c.  98,  h.  2. 

*  See  definition  in  «;lau8e  (h.). 

''  X\  &  34  Vict.  c.  r,H,  8.  3. 

"  24  &  2rj  \'i(t.  c.  98,  8.  48.  Tliis  section  is  exceedingly  verbose,  and 
IH  not  bkely  tobe  put  in  force.  I  liav«!  therefore  greatly  abridj^cjd  it.  To 
judge   from   the    Index   to   the    Revined    Statutes,    it   cun    apply    only    to 


334  A   DIGEST   OF 


punishable  under  the  24  &  25  Vict.  c.  98,  and  which  consists 
in  forging  or  uttering  any  document,  or  acting  under  a  forged 
document  or  personation,  or  making  or  being  in  possession  of 
instruments  for  making  any  kind  of  paper,  or  other  offence 
of  the  same  nature. 

Article  389. 

forgeries  punishable  with  fourteen  years  renal 
servitude. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  fourteen  years  penal  servitude,  who  with  intent 
to  defraud  ^  forges  or  utters  : 

{a.)  ^  any  debenture  issued  under  any  lawful  authority 
either  within  His  Majesty's  dominions  or  elsewhere ; 

(b.)  ^  any  ^  document  made  under  any  Act  in  force  for  the 
time  being  relating  to  the  registry  of  deeds,  or  the  seal  or 
any  impression  of  the  seal  of  any  office  for  the  registry  of 
deeds,  or  any  thing  purporting  to  be  the  name,  handwriting, 
or  signature  of  any  person  to  any  such  document  required  to 
be  signed  by  the  law  for  the  time  being ;  or 

any  document  mentioned  in  (b.)  having  thereon  any  such 
forged  stamp,  impression,  name,  handwriting,  or  signature  ; 

(c.)  "''  any  ^  instrument  made,  or  purporting  or  appearing 
to  be  made,  by  ^  any  of  the  officers  mentioned  in  the  note 


52  Geo.  3,  c.  143,  s.  6,  referring  to  forging  certificates,  &c. ,  of  redemption 
of  the  land  tax  where  the  punishment  was  originally  death,  and  was 
reduced  to  transportation  for  life  by  1  Will.  4,  e.  66,  s.  I. 

1  24  &  25  Vict.  c.  98,  s.  26,  "  shall  fraudulently  forge  or  alter  or  shall  " 
utter;  s.  31,  "shall  forge  or  fraudulently  alter  or  shall "  utter  ;  s.  33, 
"whoever  with  intent  to  defraud  shall  forge  or  alter,"  &c.  I  see  no 
difference  in  the  meaning  of  these  phrases,  nor  do  I  understand  why  they 
are  varied.     The  word  "  forge  "  in  itself  implies  an  intent  to  defraud. 

^  24  &  25  Vict.  c.  98,  s.  26. 

3  Ibid.  s.  31. 

*  any  memorial,  affidavit,  affirmation,  entry,  certificate,  endorsement, 
document,  or  writing. 

6  24  &  25  Vict.  c.  98,  s.  33. 

"  "  certificate,  report,  entry,  endorsement,  declaration  of  trust,  note, 
direction,  authority,  instrument,  or  writing." 

"  The  Accountant-General,  or  any  other  the  officers  of  the  Court  of 
Chancery   in  England  and   Ireland,  any  judge  or  officer  of  the  Landed 


THE    CRIMIXAL    LAW  335 

hereto,  or  the  name,  handwriting,  or  signature  of  any  such 
officer ;  or 

(d.)  ^  who  -  draws  any  bill  of  exchange  or  other  for  the 
delivery  or  transfer  of  -"^  goods  by  procuration  or  otherwise 
for,  in  the  name,  or  on  the  account  of  any  other  person 
without  lawful  authoritj'  or  excuse,  or  utters  any  such  bill 
or  order  knowing  it  to  be  so  drawn  ;   or 

(c.)*who  ^demands  or  obtains  any  ^property  whatso- 
ever, under,  upon,  or  by  virtue  of  any  ^  forged  instrument 
whatsoever,  knowing  it  to  be  forged,  or  under,  upon,  or  by 
virtue  of  any  probate  or  letters  of  administration,  knowing 
the  ^  will  on  which  such  probate  or  such  letters  of  administra- 
tion were  obtained  to  have  been  forged,  or  knowing  the  pro- 
bate of  letters  of  administration  to  have  been  obtained  by 
any  fiilse  oath,  affirmation,  or  affidavit ;  or 

(/)  ^who  forges  a  die  or  stamp;  or 

(g.)  ^knowingly  sells  or  exposes  for  sale,  or  utters,  or  uses 
any  forged  stamp,  or  any  stamp  Avhich  has  been  fraudulently 
printed  or  impressed  from  a  genuine  die^*';  or 

(/(.)  causes  or  procures  to  be  done,  or  knowingly  aids,  abets, 
or  assists  in  doing  any  of  the  acts  mentioned  in  (/.)  and  (ff.). 


Estates  Court  in  Ireland,  every  officer  of  every  Court  in  England  or  Ire- 
land, every  cashier  or  other  officer  or  clerk  of  the  Governor  and  Company 
of  the  Bank  of  ?]ngland  or  Ireland. 

*  24  &  25  Vict.  c.  98,  s.  24. 

-  "draw,  make,  sign,  accept,  or  indorse." 

3  "any  bill  of  exchange  or  promissory  note,  or  any  undertaking, 
warrant,  order,  authority,  or  request  for  the  payment  of  money,  or  for 
the  delivery  or  transfer  of  goods  or  cliattcls,  or  of  any  hill,  note,  or  other 
security  for  money."  A  document  which  is  in  form  a  receipt  may  be  in 
substance  a  warrant,  &c. ,  li.  v.  Kay,  1870,  1  C.  C.  R.  29. 

*  24  &  25  Vict.  c.  98,  r.  38. 

*  "demand,  receive,  or  obtain,  or  cause  or  procure  to  I)c  delivered  or 
paid  to  any  person,  or  endeavour"  to  do  any  sucli  thing. 

•^   "  chattel,  money,  Kccurity  for  money,  or  otlier  proj)crty  wliatsoever. " 
^  A  forged  telegram  making  a  bet  is  a  forged  instrument.      Ji.  v.  A'/Ay 
[1890],  1  g.  ]{.  ."109. 

*  "  testament,  codicil,  or  testamentary  writing." 

9  54  k  55  Vict.  <:.  :iH,  s.  V.i  {1}  and  (8)  ;  see  note  2,  ;>f».y,  p.  ."Ms,  for 
definition  of  "  forge,"  "Htamjj,"  &c. 

'°  Any  i»er«on  appr)intcd  to  sell  and  distribute  stamps,  or  being  or 
having  been  licensed  to  deal  in  stampH,  found  in  posseHsion  of  forged 
stamps,   is  deemed,  until    the    contrary  is  proved,   to  be  guilty  of   tins 

r.tr.-ii.-.-.    ri.i.i.  H.  IS. 


336  A    DIGEST   OF 


Article  890. 
forgeries  punishable  with  seven  years  penal  servitude. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  seven  years  penal  servitude,  who 

((X.)  ^  forges  the  seal  of  any  Court  of  record  ;  or 

(&.)  -forges  or  utters  any  process  of  any  Court  of  justice 
whatever,  or 

serves  or  enforces  any  such  forged  process  knowing  it  to 
be  forged,  or  delivers,  or  causes  to  be  delivered,  to  any  person 
any  paper  falsely  purporting  to  be  any  such  process,  or  a 
copy  thereof,  or  to  be  any  judgment,  decree,  or  order  of  any 
Court  of  law  or  equity,  or  a  copy  thereof,  or 

acts,  or  professes  to  act,  under  any  such  false  process 
knowing  (in  any  such  case)  such  process  to  be  false  ;  or 

(c.)  ^  forges  or  utters  any  copy  or  certificate  of  any  record 
or  utters  any  such  copy  or  certificate  having  thereon  any 
forged  name,  handwriting,  or  signature  ;  or 

{d.)  ^  forges  or  utters  ^  any  original  document  whatever 
of  any  Court  which,  on  the  6th  of  August,  1861,  was  a  Court 
of  record,  of  equity,  or  of  Admiral t}'  in  England  or  Ireland, 
or  any  document,  or  copy  of  a  document,  used,  or  intended 
to  be  used,  as  evidence  in  any  such  Court ;  or 

1  Clause  (a.)  represents  part  of  24  &  25  Vict.  c.  98,  s.  28,  which  occurs 
in  the  middle  of  the  section.  The  statute  says  nothing  in  this  case  of 
forging  the  stamp  or  impression  of  such  seals. 

2  Claiise  (h.)  represents  the  effect  of  that  part  of  sect.  27,  which  makes 
it  an  offence,  inter  alia,  to  forge  the  process  of  certain  Courts  najned, 
combined  with  that  part  of  sect.  28  which  makes  it  an  offence  to  forge  the 
process  of  any  other  Court  than  those  mentioned  in  sect.  27,  and  to  serve 
the  forged  process  of  any  Court  whatever.  These  sections  are  singularly 
cumbrous  and  ill-arranged,  besides  being  intolerably  wordy. 

■'  24  &  25  Vict.  c.  98,  s.  28. 

^  Ibid.  s.  27. 

°  "record,  writ,  return,  panel,  process,  rule,  order,  warrant,  inter- 
rogatory, deposition,  affidavit,  affirmation,  recognisance,  cognovit  ac- 
tionem, or  warrant  of  attorney,  or  any  original  document  whatsoever  of  or 
belonging  to  any  Court  of  record,  or  any  bill,  petition,  process,  notice,  rule, 
answer,  pleading,  interrogatory,  deposition,  affidavit,  affirmation,  report, 
order,  or  decree,  or  any  original  document  whatsoever  "  of  the  other  Courts 
named.  As  the  Courts  of  Equity  and  Admiralty  in  England  now  form 
divisions  of  the  High  Court,  the  distinction  between  the  different  classes 
of  documents  would  seem  to  have  ceased  to  exist. 


THE  CRIMINAL  LAW  337 

(c.)  ^  who,  being  the  clerk  of  any  Court  or  other  officer, 
or  deputy  of  the  clerk  or  officer  having  custody  of  the 
records  of  any  Court,  utters  a  false  copy  or  certificate  of  any 
record ;  or 

(/.)  -who,  not  being  such  officer  or  deputy,  signs  or  cer- 
tifies any  copy  of  any  record  or  certificate  as  such  officer  or 
deputy ;  or 

(^.)  ^  who  forges  or  utters  any  instrument,  whether 
\\Titten  or  printed  in  whole  or  in  part,  made  evidence  by 
any  Act  of  Parliament  in  force  for  the  time  being,  and 
not  mentioned  specifically  in  any  other  Article  of  this 
chapter;  or 

^  any  licence  of  or  certificate  for  marriage  ;  or 
^  the  ^  signature  of  a  witness  attesting  the  execution  of 
any  power  of  attorney  or  other  authority  to  transfer  any 
interest  in  any  stock  mentioned  in  the  first  paragraph  of 
Article  388  (&.)  or  (/.),  or  to  receive  any  dividend  or  money 
jDayable  in  respect  thereof; 

(A.)  ^  who,  being  a  clerk,  officer,  or  servant  or  other  person 
employed  by  the  Bank  of  England  or  Ireland,  knowingly 
and  with  intent  to  defraud  makes  out  or  delivers  any  divi- 
dend warrant  or  warrant  for  the  payment  of  any  annuity, 
interest,  or  money  payable  at  either  of  the  said  banks  for  an 
amount  greater  or  less  than  that  to  which  the  person  on 
whose  behalf  such  warrant  is  made  out  is  entitled ; 

{%.)  **  who  forges  the  seal  or  any  process  of  a  County  Court, 
or  who  serves  or  enforces  such  forged  process,  knowing  the 
same  to  be  forged,  or  delivers  or  causes  to  be  delivered  to 
any  person  any  paper  falsely  purporting  to  be  a  copy  of  any 
summons  or  other  process  of  the  said  Court  knowing  the 
sajno  to  be  false,  or  acts  or  professes  to  act  under  any  false 

'  24  &  25  Vict.  c.  98,  h.  28. 
2  Il,i<l.  8.  28. 

Ihi.l.   H.    2». 

Ihi.l.     H.     1. 

"any  name,  luiiulwiiliiig,  oi-  signature  purpoiting  to  In-  tlio  name, 
AC,  of." 

7  24  &  2.")  Vict.  c.  98,  h.  6. 
*  51  A:  52  Vict.  c.  4.3,  h.  180. 


3.38  A   DIGEST  OF 


colour  or  pretence  of  the  process  or  authority  of  the  said 
Court ; 

(k.)  ^  who  forges, counterfeits,  or  fraudulently  alters  the  seal 
or  signature  of  any  person  authorised  by  or  under  the  Com- 
missioners for  Oaths  Act  1889  (52  Vict.  c.  10)  to  administer 
an  oath,  -affirmation,  or  declaration. 

Article  391. 
forgery  punishable  with  five  years  penal  servitude. 

■'  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  •*  five  years  penal  servitude,  who 

forges  or  utters  any  summons,  conviction,  order,  or  warrant, 
of  any  justice  of  the  peace,  or  any  recognisance  purporting 
to  have  been  entered  into  before  any  person  authorised  to 
take  it,  or  any  examination,  deposition,  affidavit,  affirmation, 
or  solemn  declaration  taken  or  made  before  any  justice  of  the 
peace. 

Article  392. 

false  entry  as  to  copyright. 

^ Every  one  is  guilty  of  a  misdemeanour  who  wilfully 
makes  or  causes  to  be  made  any  false  entry  in  the  registry 
book  of  the  Stationers'  Company. 

Article  393. 

DEFACING   rate   BOOKS. 

•^  Ev'Cry  person  is  guilty  of  a  misdemeanour  who  wilfully 
injures,  defaces,  conceals,  or  destroys  a  rate  book,  assessment, 

1  52  Vict.  c.  10,  s.  8. 

2  Ibid.  s.  IL 

3  24  &  25  Vict.  c.  98,  s.  .32. 

*  This  was  originally  three  years,  but  was  raised  to  five  j'ears  by 
27  &  28  Vict.  c.  47,  s-  2  ;  l)ut  three  years  is  now  the  niiniinnm,  see 
54  &  55  Vict.  c.  69,  s.  1 . 

5  5  &  6  Vict.  c.  45,  s.  12. 

c  25  &  26  Vict.  c.  103,  s.  40. 


THE  CRIMINAL  LA  W  339 

or  valuation  required  to  be  produced  before  an  assessment 
committee. 

Article  394. 
forging  ballot  papers. 

^  Every  person  is  guilty  of  a  misdemeanour,  and  is  liable 
to  imprisonment  with  hard  labour  for  two  years  if  he  is  a 
returning  officer  or  an  officer  or  clerk  in  attendance  at  a 
polling  station,  or  for  six  months  if  he  is  any  one  else,  who 

{a.)  forges  or  fraudulently  defaces  or  fraudulently  destroys 
any  nomination  paper,  or  delivers  to  the  returning  officer 
any  nomination  paper  knowing  the  same  to  be  forged  ;  or 

(/).)  forges  or  counterfeits  or  fraudulently  defaces  or  frau- 
dulently destroys  any  ballot  paper,  or  the  official  mark  on 
any  ballot  paper. 

Article  395. 

FORGING   telegrams. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  to 
imprisonment  with  hard  labour  for  twelve  months,  who 
forges  ur  wilfully  and  without  due  authority  utters  a  ^  tele- 
gram, or  transmits  by  telegraph  as  a  telegram,  or  utters  as  a 
telegram,  any  message  or  communication  Avhich  ho  knows 
not  to  be  a  telegram,  whether  he  had  or  had  not  an  intent  to 
defraud. 

Article  39G. 

MAKING  OR  POSSESSION  OF    PAPER,    ETC.,   FOR    FORGING    RANK 
NOTES  PCNISHAULE  WITH  FOURTEEN  YEARS  PENAL  SERVITUnE. 

Every    one    coinmits  fc'lony,  and    is  liable   on    fonvic^tion 
thereof  to  fourteen  years   penal    scr\itii(lr,   whu  docs  any  of 
'  .s.-.  A  .'{«  Viol.  <;.  .'{.•{,  H.  ;l 

'^  47  fi.  4S  \'i<.'t.  i;.  7n,  H.  !  1  ;  IIiIh  od't'iicc  is  iilso  piiiiislialtic  siiiiiinaiily, 
Hce  Ok«;'H  SyiiopKiH,  p.  O.'J'J. 

■'  For  tin;  (lefiiiitidii  of  a  U'Icltiiim,  kcc  p.  *XI,  ii.  (j. 

/,  2 


340  A   DIGEST  OF 


the  following  things  without  lawful  authority  or  excuse,  the 
proof  whereof  lies  upon  him  (that  is  to  say) : 

(a.)  1  who  purchases  or  receives  from  any  person,  or  has  in 
his  custody  or  possession,  any  forged ''  or  blank  bank-note, 
knowing  it  to  be  forged  ;  or 

(b.)  2  who  makes,  uses,  sells,  exposes  to  sale,  utters,  or 
knowingly  has  in  his  custody  or  possession  any  •*  bank-note 
paper,  or 

any  frame,  mould,  or  instrument  for  making  such 
paper,  or 

who  by  any  art  or  contrivance  causes  the  numerical  sum 
or  amount  of  any  bank-note  ^  or  blank  bank-note  in  a  word  or 
words  in  Roman  letters  to  appear  visible  in  the  substance  of 
the  paper  whereon  the  same  is  written  or  printed,  or 

who  causes  any  of  the  words  or  marks  mentioned  in  the 
definition  of  bank-note  paper  given  in  the  footnote  to  appear 
in  the  substance  of  any  paper ; 

•^  provided  that  nothing  in  this  Article  is  to  prevent  any 
person  from  issuing  any  bill  of  exchange  or  promissory  note 
having  the  amount  thereof  expressed  in  guineas,  or  in 
numerical  figures  denoting  the  amount  thereof  in  pounds 
sterling,  appearing  visible  in  the  substance  of  the  paper  upon 
which  the  same  is  written  or  printed ;  ^ 

or  from  making,  using,  or  selling  any  paper  having  waving 

1  24  &  25  Vict.  c.  98,  s.  13. 

-  "Any  forged  bank-note,  bank  bill  of  exchange,  or  bank  post  bill,  or 
l)lank  bank-note,  blank  bank  bill  of  exchange,  or  blank  bank  post  bill."' 

3  24  &  25  Vict.  c.  98,  s.  14. 

*  Bank-note  paper  means  "any  paper  whatsoever  with  the  words 
'Bank  of  England,'  or  'Bank  of  Ireland,'  or  any  part  of  such  words 
intended  to  resemble  and  pass  for  the  same,  visible  in  the  substance  of 
the  paper,  or  any  paper  with  curved  or  waving  bar  lines,  or  with  the 
laying  wire  lines  thereof,  in  a  waving  or  curved  shape,  or  with  any 
number,  sum,  or  amount  expressed  in  a  word  or  words  in  Roman  letters, 
appearing  visible  in  the  substance  of  the  paper,  or  with  any  device  or 
distinction  peculiar  to,  and  appearing  in,  the  substance  of  the  paper  used 
by  the  Governor  and  Company  of  the  Banks  of  England  and  Ireland 
respectively  for  any  notes,  bills  of  exchange,  or  bank  post  bills  of  such 
banks  respectively." 

^  "Bank-note,  l)ank  bill  of  exchange,  or  bank  post  bill,  blank  bank- 
note," &c.  (as  before,  inserting  "  blank  "  before  "  bank  "). 

6  24  &  25  Vict.  c.  98,  s.  15. 

"  This  probably  means  ' '  any  note  in  the  substance  of    the  paper  of 


THE  CRIMIXAL  LAW  341 

or  curved  lines,  or  any  other  devices  in  the  nature  of  water- 
marks visible  in  the  substance  of  the  paper,  not  being  bar 
lines  or  laying  wire  lines,  provided  that  they  are  not  so 
contrived  as  to  form  the  groundwork  or  texture  of  the  paper, 
or  to  resemble  the  waving  or  curved  laying  wire  lines  or  bar 
lines  or  the  water-marks  of  the  paper  used  by  the  Bank  of 
England  or  the  Bank  of  Ireland  respectively ;  or 

(c.)  ^  who  engraves  or  makes  in  any  manner,  upon  any 
plate  or  other  thing,  any  note  purporting  to  be  a  -  bank-note, 
or  blank  bank-note,  or  any  part  thereof,  or  any  name,  word, 
or  character  resembling  any  subscription  to  any  bill  of  ex- 
change or  promissory  note  issued  by  any  company  or  person 
mentioned  in  the  note  ;  or 

uses  any  such  plate  or  thing,  or  any  other  instrument 
or  device  for  making  or  printing  any  such  ^  note,  or  part 
thereof,  or  knowingly  has  in  his  possession  any  such  plate, 
thing,  or  instrument,  or  device  ;  or 

knowingly  utters  or  has  in  his  possession  any  paper  on 
which  is  made  or  printed  any  *  blank  bank-note,  or  part  of  a 
bank-note,  or  any  word,  name,  or  character  resembling  any 
subscription  thereto ;  or 

{d.)  -Svho  engraves  or  makes   upon   any  material  what- 

wliich  there  visibly  appear  either  words  or  figures  expressing  the  amount 
111  guineas,  or  figures  denoting  tlie  amount  thereof  in  pounds  sterling."' 

It  may  possibly  mean  "nothing  in  this  section  prevents  any  person 
from  issuing  any  note  having  the  amount  expressed  in  guineas,  whatever 
kind  of  paper  he  may  use  for  the  purpose,  or  any  note  having  the  amount 
thereof  expressed  in  numerical  figures,  denoting  its  value  in  pounds 
sterling,  and  appearing  visible,"  &c. 

»  24  &  25  Vict.  c.  98,  s.  16. 

'^  "  Any  promissory  note,  bill  of  exchange,  or  bank  post  bill,  or  part  of 
a  promissory  note,  bill  of  exchange,  or  bank  post  bill,  purporting  to  be  a 
bank-note,  Ijank  bill  of  exchange,  or  bank  post  Ijill  of  the  (Jovernor  and 
Company  of  the  Bank  of  England,  or  of  the  (Jovernor  and  Company  of 
the  Bank  of  Ireland,  or  of  any  other  body  corporate,  company,  or  persons 
carrying  on  the  liusiness  of  bankers,  or  to  be  a  blank  bank-note,"'  &c.  (as 
before,  inserting  "  blank  "  bcfcne  "  bank  ").  It  is  almost  impossiljle  to  be 
Hure  whether  these  sections  arc  quite  correctly  stated  or  not,  tlie  phrase- 
ology is  quite  liewildering. 

^  "  Hank-note,  bank  bill  of  exchange,  or  bank  post  bill,  or  blank  bank- 
note," &c.  (as  l>efore,  inserting  "  blank  "  Ijcfore  "  bank  "). 

*  Blank  bank-note,  l)Iank  l)aMk  1)111  of  excliange,  or  blank  p(jst  liiil  of 
the  (Jovernor  and  Company,  Ac,  repeating  tlie  persons  named  in  note  2, 
alxjve.  "  21  &  2.-.  \'ict.  c.  OH,  s.   17. 


342  A  DIGEST  OF 


ever  ^  any  word,  number,  figure,  device,  character,  or  orna- 
ment, the  im})ressi()n  taken  from  which  resembles  any  part 
of  a  -  bank-note  ;  or 

uses  or  knowingly  has  in  his  custody  or  possession  an}' 
material  or  instrument  or  device  for  impressing  or  making 
any  such  impression  as  aforesaid  upon  any  paper  or  other 
material ;  or 

knowingly  utters  or  has  in  his  custody  or  possession 
^  any  paper  or  other  material  upon  which  there  is  any  such 
impression ;  or 

(e.)  ^  who  makes  or  uses  any  frame,  mould,  or  instrument 
for  the  manufacture  of  paper  with  the  name  or  firm  of  any 
^  bank  (other  than  the  Bank  of  England  and  the  Bank  of 
Ireland)  appearing  visible  in  the  substance  of  the  paper;  or 

knowingly  has  in  his  custody  or  possession  any  such 
frame,  mould,  or  instrument ;  or 

makes,  uses,  sells,  exposes  to  sale,  utters,  or  knowingly 
has  in  his  custody  or  possession  any  such  paper ;  or 

by  any  art  or  contrivance  causes  any  such  name  to 
appear  visible  in  the  substance  of  the  paper  upon  which 
it  is  printed  or  written ;  or 

(/.)  ^  who  engraves  or  makes  upon  any  plate  or  upon 
any  ^  material  any  bill  of  exchange,  promissory  note,  under- 
taking, or  order  for  payment  of  money,  or  any  part  of 
any  such  document  in  any  language,  and,  whether  under 
seal  or  not,  purporting  to  be  a  document  of  any  foreign 
prince  or  state,  or  of  any  minister  or  officer  in  the  service 
of  any  such  prince  or  state,  or  of  any  corporation  recog- 
nised by  any  such  prince  or  state,  or  of  any  person  or  com- 
pany of  persons  resident  out  of  His  Majesty's  dominions;  or 

uses  or  has  in  his  possession  any  plate  or  material  upon 

^  "  Any  plate  whatsoever,  or  any  wood,  stone,  or  other  material." 

-  See  p.  341,  note  3. 

3  24  &  25  Vict.  c.  98,  s.  18. 

*  "  body  corporate,  company,  or  person  carrying  on  the  business  of 
bankers." 

°  24  &  25  Vict.  c.  98,  s.  19.  Taking  a  positive  impression  of  an 
Austrian  note  on  glass  by  photography  is  a  "  making "  within  this 
section  :  B.  v.  liivaldi,  1863,  L.  &  C.  330. 

*'  "  Upon  any  wood,  stone,  or  other  material." 


THE  CRIMINAL  LA  W  343 

which   any   such    document,    or   any    part    thereof,    is    en- 
graved ;  or 

kno-wdngly  utters  or  has  in  his  custody  or  possession  any 
paper  upon  which  any  part  of  any  such  document  is  made  or 
printed. 

Article  397. 

offences  relating  to  exchequer  bills'  and  paper  used 
for  them,  seven  years  penal  servitude. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  seven  years  penal  servitude, 

(a.)  ^  who,  without  lawful  authority  or  excuse  (the  proof 
whereof  lies  upon  the  party  accused),  makes,  causes,  or  pro- 
cures to  be  made,  or  aids  or  assists  in  making,  or  knowingly 
has  in  his  possession, 

(i.)  any  paper  in  the  substance  of  which  appears  any  thread 
or  -  device,  or  any  part  of  any  thread  or  device,  jicculiar  to 
and  appearing  in  the  substance  of  paper  ^  used  for  ^  exchequer 
bills,  and  intended  to  imitate  the  same  ; 

(ii.)  ^any  frame,  mould,  or  instrument  having  therein  any 
such  ^  device  ; 

(iii.)  ^  any  machinery  for  working  any  thread  into  the 
substance  of  any  paper,  or  any  such  thread,  such  instrument, 
machinery,  or  thread  being  intended  to  imitate  any  such 
device  ; 

(iv.)  ^  any  plate  peculiarly  employed  for  printing  exchequer 

1  24  &  25  Vict.  c.  98,  s.  10. 

^  "words,  letters,  figures,  mark.s,  lines,  threads,  or  other  devices." 

•^  "  Provided,  or  to  be  provided  or  used." 

*  "  Kxclie<juer  hills,  Ixjiids,  or  debentures." 

'  24  &  25  Vict.  c.  98,  s.  9.  "Exchequer  bill"  includes  "Treasury 
bill"  :   40  Vict.  c.  2,  8.   10. 

°  "  Device  "  here  lias  the  same  meaning  as  in  note  (2),  except  the  word 
"  threa<l." 

^  24  &  25  Vict.  c.  98,  part  of  s.  9.  T}ie  language  tlius  paraphra.sed  is 
excecilingly  cluiiiHy  :  "any  .  .  .  instrument  having  therein  any  word  h,  Ac, 
or  any  ma<.liinery  for  W(Hking  any  tiireads,  Ac,  or  any  sncli  tliicad,  and 
iiiltmbd  to  imitate  such  words,"  &c.  'i'he  words  in  italics  are  hardi}' 
gratnmatic<il,  but  I  suiJjjoHe  they  mean  wliat  is  Htateil  in  the  ti!Xt. 

"  24  A:  25  Vict.  c.  98,  h.  9.  Kxchcr|ucr-  bill  inclndus  Treasury  bill 
throughout  thin  Article,  40  Vict.  c.  2,  h.  In. 


344  A  DIGEST  OF 


bills,  or  any  die  or  seal  peculiarly  used  lor  ])re})aring  any 
such  plate  or  for  sealing  exchequer  bills,  or  any  plate,  die, 
or  seal  intended  to  imitate  any  such  plate,  die,  or  seal ;  or 

(b.)  ^  who  causes,  or  assists  in  causing,  any  such  device, 
or  any  part  of  any  such  device  as  aforesaid,  and  intended  to 
imitate  the  same,  to  appear  in  the  substance  of  any  paper 
whatever;  or 

(c.)  -who  takes,  or  assists  in  taking,  any  impression  of 
any  such  plate,  die,  or  seal  as  is  mentioned  in  clause  (a.) 
(iv.). 

Article  398. 
the  like  ;  three  years  imprisonment. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  imprisonment  for  three  years  with 
hard  labour,  who 

(a.)  purchases  or  receives  or  knowingly  has  in  his  custody 
or  possession  any  such  plate,  die,  or  seal  as  is  mentioned  in 
clause  (a.)  (iv.)  of  the  last  Article  ;  or 

(b.)  who  purchases  or  receives  or  knowingly  has  in  his 
possession  or  custody  any  paper  provided  by  or  under  the 
direction  of  the  Commissioners  of  Inland  Revenue  or  of  the 
Treasury  for  the  purpose  of  being  used  as  exchequer  bills 
before  such  paper  is  duly  stamped,  signed,  and  issued  for 
public  use. 

Article  399. 

"  trade  mark  "  and  "  trade  description  "  defined. 

"^  "  Trade  mark  means  a  trade  mark  registered  in  the 
register   of  trade  marks  kept  under  the  Patents,  Designs, 

1  24  &  25  Vict.  c.  98,  s.  10. 

2  Ibid. 

3  Ibid. 

■*  50  &  51  Vict.  c.  28,  s.  .*}  (1),  and  sec  tlie  same  place  for  definitions  of 
"goods,"  "person,"  &c.  The  jjrovisions  of  the  Merchandise  Marks  Act 
1887,  as  to  the  application  of  a  false  trade  description  to  goods,  extend  to 
the  application  to  goods  of  marks,  &c. ,  reasonably  calculated  to  mislead 
as  to  who  are  the  manufacturers  or  merchants  thereof.  Tlie  same  pro- 
visions, and  similar   provisions  as  to  the  goods  themselves,  apply  to  the 


THE  CRIMINAL  LAW  345 

and  Trade  Marks  Act  1883,  and  includes  any  trade  mark 
which,  either  with  or  without  registration,  is  protected  by 
law  in  any  British  possession  or  foreign  State  to  which  the 
provisions  of  section  103  of  the  said  Act  are,  under  order  in 
Council  for  the  time  being,  applicable; 

"  Trade  description "  means  any  description,  statement, 
or  other  indication,  direct  or  indirect,  (a)  as  to  the  number, 
quantity,  measure,  gauge,  or  weight  of  any  goods,  or  (/y)  as 
to  the  place  or  country  in  which  any  goods  were  made  or 
produced,  or  (e)  as  to  the  mode  of  manufacturing  or  pro- 
ducing any  goods,  or  {d)  as  to  the  material  of  which  any 
goods  are  composed,  or  (e)  as  to  any  goods  being  the  subject 
of  an  existing  patent,  privilege,  or  copyright ;  and  the  use  of 
any  figure,  word,  or  mark  which,  according  to  the  custom  of 
the  trade,  is  commonly  taken  to  be  an  indication  of  any  of 
the  above  matters,  is  a  trade  description  within  the  meaning 
of  this  Act. 

"  False  trade  description "  means  a  trade  description 
which  is  false  in  a  material  respect  as  regards  the  goods  to 
which  it  is  applied,  and  includes  every  alteration  of  a  trade 
description,  whether  by  way  of  addition,  effacement,  or 
otherwise,  where  that  alteration  makes  the  description  false 
in  a  material  respect;  and  the  fact  that  a  trade  description  is 
a  trade  mark,  or  part  of  a  trade  mark,  does  not  prevent  such 
trade  description  being  a  false  trade  description  within  the 
meaning  of  this  Act. 


application  of  a  false  name  or  initials,  as  to  which  see  the  Act ;  Ibid.  s.  3 
'Ij  and  (3),  considerably  alibreviated.  Ah  to  when  the  name  of  a  country 
Mil  a  watcli-case  amounts  to  a  trade  description,  see  Ibid.  s.  7,  and  as  to 
fiil.se  declarations  in  connection  tiierewitii,  see  Ibid.  s.  8.  If  a  trade 
description  on  li3rd  August  1887  was  lawfully  and  generally  applied  to 
gofj<ls  of  a  particular  class,  or  manufacture<l  by  a  ])articular  metiiod,  to 
indicate  the  particular  class  or  methml  of  manufacture  of  such  goods,  the 
jirovisions  of  the  MerchandiHc  Marks  Act  1887  with  respect  to  false 
trade  descriptions,  as  to  which  see  Art.  400,  clo  not  apply  to  such  trade 
•I'scription  when  so  applied  :  but  exc(!j)tions  exist  wiicre  tlic  tiade 
Inscription  includes  the  name  of  a  place  or  countiy  ;   lliid.  s.   IS. 


346  A  DIGEST  OF 


Article  400. 

1  forging  trade  marks   and   misapplying   trade 
descriptions. 

2  Every  one  commits  a  misdomoanour  and  is  liable,  on  con- 
viction thereof  on  indictment,  to  imj)ri.sonment  with  hard 
labour  for  two  years,  or  to  a  fine,  or  both,  who 

3  (o.)  forges  ^  any  trade  mark  ;  or 

(&.)  falsely  applies  ^  to  goods  any  trade  mark  or  any  mark 
so  nearly  resembling  a  trade  mark  as  to  be  calculated  to 
deceive ;  ®  or 

1  These  offences  are  also  punishable  summarily,  as  to  which  see  Oke's 
Synopsis,  pp.  446-450. 

2  50  &  51  Vict.  c.  28,  s.  2  (3). 

3  Ibid.  s.  2  (1). 

■*  A  person  forges  a  ti'ade  mark  who  either  (a)  without  the  assent  of  the 
proprietor  of  the  trade  mark  makes  that  ti'ade  mark  oi'  a  mai-k  so  nearly 
resembling  that  trade  mark  as  to  be  calculated  to  deceive  ;  or  {h)  falsifies 
any  genuine  trade  mark,  whether  by  alteration,  addition,  eff'acement,  or 
otherwise  ;  and  any  trade  mark  or  mark  so  made  or  falsified  is  in  this  Act 
refeiTcd  to  as  a  forged  trade  mark.  Provided  that  in  any  prosecution  for 
forging  a  trade  mark  the  burden  of  proving  the  assent  of  the  proprietor 
lies  on  the  defendant,  50  &  51  Vict.  c.  28,  s.  4.  It  seems  that  this 
definition  would  be  unnecessary  were  it  not  that  it  makes  it  a  crime  to 
use  a  mai'k  without  being  aware  that  it  is  a  trade  mark. 

5  (1)  A  person  is  deemed  to  apply  a  trade  mark  or  trade  description  to 
goods  who  (a)  applies  it  to  the  goods  themselves  ;  or  [h)  applies  it  to  any 
coveruig,  label,  reel,  or  other  thing  in  or  with  which  the  goods  are  sold  or 
exposed,  or  had  in  possession  for  any  purpose  of  sale,  trade,  or  manu- 
facture ;  or  (c)  places,  incloses,  or  annexes  any  goods  which  are  sold  or 
exposed  or  had  in  possession  for  any  purpose  of  sale,  trade,  or  manufacture 
in,  with,  or  to  any  covering,  label,  reel,  or  other  thing  to  which  a  trade 
mark  or  trade  description  has  been  applied  ;  or  [d)  uses  a  trade  mark,  or 
mark,  or  trade  description  in  any  manner  calculated  to  lead  to  the  belief 
that  the  goods  in  connection  with  which  it  is  used  are  designated  or 
described  by  that  trade  mark,  or  mark,  or  trade  description.  (2)  See  the 
Act  as  to  the  meaning  of  "  covering  "  and  "label."  A  trade  mark,  or 
mark,  or  trade  description  is  deemed  to  be  applied  whether  it  is  woven, 
impressed,  or  otherwise  worked  into  or  annexed  or  affixed  to  the  goods, 
or  to  any  covering,  label,  reel,  or  other  thing.  (3)  A  person  is  deemed 
falsely  to  apply  to  goods  a  trade  mark  or  mark  who  without  the  assent  of 
the  proprietor  of  a  trade  mark  applies  such  trade  mark  or  a  mark  so  nearly 
resembling  it  as  to  be  calculated  to  deceive,  but  in  any  prosecution  for 
falsely  applying  a  trade  mark  or  mark  to  goods  the  burden  of  proving  the 
assent  of  the  proprietor  lies  on  the  defendant ;  Ibid.  s.  5. 

"  A  person  charged  with  committing  this  offence,  or  causing  it  to  be 
committed,  must  be  discharged  if  he  (a)  proves  that  in  the  ordinary 
course  of  his  business  he  is  employed  to  make  instruments  for  making 
trade  marks,  or  applying  marks  or  descriptions  to  goods,  that  he  was 


THE  CRIMIXAL  LAW  347 

(c.)  makes  any  ^  instrument  for  the  purpose  of  forging, 
or  of  being  used  for  forging,  a  trade  mark  -  ;  or 

(d.)  applies  an}-  false  trade  description  to  goods  - ;  or 

(e.)  disposes  of  or  has  in  his  possession  any  ^  instrument 
for  the  purpose  of  forging  a  trade  mark  ;  or 

(J.)  causes  any  of  the  things  above  in  this  section 
mentioned  to  be  done  ; 

unless  in  any  of  the  above  cases  he  proves  that  he  acted 
without  intent  to  defraud  ;  or 

(2)  ^who  sells,  or  exposes  or  has  in  his  possession  for  sale 
or  any  purpose  of  trade  or  manufacture,  any  goods  or  things 
to  which  any  forged  ^  trade  mark  or  false  trade  description 
is  ''  applied,  or  to  which  any  trade  mark  or  mark  so  nearly 
resembling  a  trade  mark  as  to  bo  calculated  to  deceive  is 
falsely  ^  applied,  unless  he  prove 

(a.)  that,  having  taken  all  reasonable  precautions  against 
committing  an  offence  against  the  Merchandise  Marks  Act 
1887,  he  had  at  the  time  of  the  commission  of  the  alleged 
offence  no  reason  to  suspect  the  genuineness  of  the  trade 
mark,  mark,  or  trade  description,  and 

(h.)  that  on  demand  made  by  or  on  behalf  of  the  prosecutor 
he  gave  all  the  information  in  his  power  with  respect  to  the 
persons  from  whom  he  obtained  such  goods  or  things  ;  or 

(c.)  that  otherwise  he  ^  acted  innocently. 

"  The  person  convicted  also  forfeits  to  His  Majesty  every 
chattel,  article,  instrument,  or  thing  by  means  of,  or  in 
relation  to,  which  the  offence  has  been  committed. 

employed  bj"  a  person  in  the  United  Kingdom  and  was  not  interested  in 
the  sale  of  the  goo<l8  ;  and  (Ji)  took  reasonable  precautions  against  com- 
mitting the  offence  charged  ;  and  (c)  had  no  reason  to  suspect  the 
genuineness  of  the  trade  mark,  &c.  ;  and  {d)  gave  to  the  prosecutor  all 
the  information  in  his  power  with  respect  to  the  persons  on  whose  bclialf 
the  trade  mark,  &c. ,  was  applied  ;  but  he  is  liable  to  pay  the  prosecutoi's 
costs  unless  he  gave  due  notice  of  tlie  aljove  defence  ;  Ibid.  s.  (i  (sliortcncd 
ill  parts). 

'    "die,  bl(j<,-k,  machine,  or  otiier  inKtiuiiifiit." 

'^  See  note  fi,  p.  .S4G. 

2  flO  &  r>l  Vict.  c.  '2K,  8.  2  {;!). 

*  See  note  4,  p.  .'}4<j. 

'•  See  note  /J,  |i.  .^40. 

•^  'V\u:  A(;t  sjiys  "  IiimI  acted  "  ;  it  must  mean  "  acted." 

1  50  4  r.l  Vict.  c.  'JH,  H.  2  ('.'}) 


348  A  DIGEST  OF 


^  The  Court  before  whom  any  person  is  convicted  under 
this  Article  may  order  any  forfeited  articles  to  be  destroyed 
or  otherwise  disposed  of  as  the  Court  thinks  fit. 


Article  401. 

accessories    abroad. 

-  Every  one  who,  being  within  the  United  Kingdom, 
])rocures,  counsels,  aids,  abets,  or  is  accessory  to  the  com- 
mission without  the  United  Kingdom  of  any  act  mentioned 
in  Article  400  is  guilty  as  a  principal,  and  may  be  indicted  in 
the  place  where  he  may  happen  to  be. 

Article  402. 
^offences  relating  to  stamps. 

■*  Every  one  is  guilty  of  felony,  and  is  liable  to  fourteen 
years  penal  servitude,  who 

(a.)  prints  or  makes  an  impression  upon  any  material  with 
a  forged  die ;  or 

(b.)  fraudulently  prints  or  makes  an  impression  upon  any 
material  from  a  genuine  die  ;  or 

(c.)  fraudulently  cuts,  tears,  or  in  any  way  removes  from 
any  material  any  stamp,  with  intent  that  any  use  should  be 
made  of  such  stamp  or  of  any  part  thereof;  or 

(d.)  fraudulently  mutilates  any  stamp,  with  intent  that 
any  use  should  be  made  of  any  part  of  such  stamp ;  or 

(e.)  fraudulently  fixes  or  places  upon  any  material  or  upon 
any  stamp,  any  stamp  or  part  of  a  stamp  which,  whether 

1  50  &  51  Vict.  c.  28,  s.  2  (4). 
^  Ibid.  s.  II. 

2  Section  27  of  the  Stamp  Duties  Management  Act  1891  (54  &  55 
Vict.  c.  38)  enacts  that  "  'stamp'  means  as  well  a  stamp  impressed  by 
means  of  a  die  as  an  adliesive  stamp  for  denoting  any  duty  or  fee  "  : 
this  must  probably  be  read  as  confined  to  stamps  issued  by  the  authority 
of  the  Commissioners  of  Inland  Revenue  :  also  that  "  '  forge  '  and  '  forged ' 
include  counterfeit  and  counterfeited."  See  the  section  for  definitions  of 
"material,"  "  die,"  &c. 

■»  54  &  55  Vict.  c.  38,  s.  13  (2)-(7),  (9). 


THE    CRIMINAL    LAW  349 

fraudulently  or  not,  has  been  cut,  torn,  or  in  any  way 
removed  from  any  other  material,  or  out  of  or  from  any  other 
stamp ;  or 

(/.)  fraudulently  erases  or  otherwise  either  really  or 
apparently  removes  from  any  stamped  material  any  name, 
sum,  date,  or  other  matter  or  thing  whatsoever  thereon 
written,  Avith  the  intent  that  any  use  should  be  made  of  the 
stamp  upon  such  material ;  or 

{g.)  knowingly  and  without  lawful  excuse  (the  proof 
whereof  lies  on  the  person  accused)  has  in  his  possession 
any  forged  die  or  stamp,  or  any  stamp  which  has  been 
fraudulently  printed  or  impressed  from  a  genuine  die,  or  any 
stamp  or  part  of  a  stamp  which  has  been  fraudulently  cut, 
torn,  or  otherwise  removed  from  any  material,  or  any  stamp 
which  has  been  fraudulently  mutilated,  or  any  stamped 
material  out  of  which  any  name,  sum,  date,  or  other  matter 
or  thing  has  been  fraudulently  erased,  or  otherwise  either 
really  or  apparently  removed  ^ ;  or 

(h.)  causes  or  procures  to  be  done,  or  knowingly  aids, 
abets,  or  assists  in  doing,  any  of  such  acts. 

-  Every  one  commits  felony,  and  is  liable  to  penal  servitude 
for  seven  years,  who 

(a.)  makes  or  causes  or  procures  to  be  made,  or  aids  or 
assists  in  making,  or  knowingly  has  in  his  custody  or  pos- 
session, any  paper  in  the  substance  of  which  appear  any 
^  devices  peculiar  to,  and  appearing  in  the  substance  of  any 
paper  provided  or  used  by,  or  under  the  direction  of,  the 
Commissioners,  for  receiving  the  impression  of  any  die,  or  any 
part  of  such  devices,  and  intended  to  imitate  and  pass  for 
the  same  ;  or 

(b.)  causes  or  assists  in  causing  any  such  ^  devices,  or  any 
j)art  thereof  intended  to  pass  for  the  same,  to  appear  in  the 
-iibstancc  of  any  paper  whatever. 

'  Any  pcTHon  appointe*!  to  bcII  and  (liHtril)ute  RtanipH,  or  ln-ing  or 
having  l>ecn  licenHcd  to  deal  in  Htanipn,  foiinil  in  poHHosHion  of  forged 
HlairipH  iH  doenicd  until  the  contrary  in  proved  to  be  guilty  of  this  oirence; 
")4  &.  ').")  Vict.  c.  'AH,  H.  18. 

-  Il.id.  H.   14. 

•'  "any  wordH,  lettero,  figurcH,  niarku,  IImch,  tlinnds,  m  othii  devices." 


350  A    D 10 EST   OF 


^  Every  person  is  guilty  of  a  misdemeanour,  and  is  liable 
to  imprisonment  for  two  years  with  hard  labour,  who  without 
lawful  authority  or  excuse  (the  proof  of  which  lies  on  the 
accused)  purchases,  or  receives,  or  knowingly  has  in  his 
custody  or  possession : 

(a.)  any  paper  manufactured  by,  or  under  the  direction  of, 
the  Commissioners,  for  the  purpose  of  being  used  for  receiving 
the  impression  of  any  die,  before  the  paper  has  been  duly 
stamped  and  issued  for  public  use  ;  or 

(b.)  any  plate,  die,  dandy-roller,  mould,  or  other  implement 
peculiarly  used  in  the  manufacture  of  any  such  paper. 

Article  403. 

forgery  at  common  law,  misdemeanour. 

^  Every  one  commits  a  misdemeanour  who  forges  any 
document  by  which  any  other  person  may  be  injured,  or 
utters  any  such  document  knowing  it  to  be  forged  with  intent 
to  defraud,  whether  he  effects  his  purpose  or  not. 

Illustrations. 

The  forgery  or  uttering  of  any  of  the  following  documents  is  a 
misdemeanour : — 

^  An  order  from  a  magistrate  to  a  gaoler  to  discharge  a 
prisoner  as  upon  bail  being  given. 

'*  A  certificate  of  character  to  induce  the  Trinity  House  to 
enable  a  seaman  to  act  as  master. 

^  Testimonials  whereby  the  offender  obtained  an  appointment 
as  a  police  constable. 

•^  The  like  with  intent  to  obtain  tlie  office  of  a  parish  scliool- 
master. 

^  A  certificate  that  a  liberated  convict  was  gaining  his  living 
honestly  to  obtain  an  allowance. 

1  54  &  55  Vict.  c.  .38,  s.  15. 

2  B.  V.  Ward,  1726,  East,  P.  C.  861  ;  /?.  v.  Sharman,  1854,  U.  &  P. 
285  (overruling  7^.  v.  Bon/f,  1848,  2  C.  &  K.  604). 

■■'  7?.  V.  Harris,  18.34,  Moo.  C.  CJ-SD^. 

•»  B.  V.  Toshacl;  1849,  1  Den.  C.  C.  492. 

'-  B.  Y.'Moah,  1858,  1).  &  P.  550. 

6  /.'.  y.\Sharman,  1854,  U.^&  P.  285. 

7  B.  V.  Mitchell,  1860,  2  F.  &  F.  44. 


THE   CRIMINAL    LAW  351 


CHAPTER  XLVI 

PERSONATION 

Article  404. 
personation  to  obtain  property. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life,  who  falsely  and  deceit- 
fully personates 

(rt.)  ^  any  person,  or  the  heir,  executor,  or  administrator, 
wife,  widow,  next  of  kin,  or  relation  of  any  person,  with  intent 
fraudulently  to  obtain  any  land,  estate,  chattel,  money,  valu- 
able security,  or  property ; 

(5.)  -  any  owner  of  any  share  or  interest  of  or  in  any  stock, 
annuity,  or  other  public  fund  transferable  at  the  Bank  of 
England  or  the  Bank  of  Ireland  ; 

(c.)  any  oAvner  of  any  share  or  interest  of  or  in  the  capital 
stock  of  any  body  corporate,  company,  or  society  established 
by  charter  or  by  virtue  of  an  Act  of  Parliament ; 

(f/.)  any  owner  of  any  dividend  or  money  payable  in  respect 
of  any  such  share  or  interest  as  aforesaid  ; 

and  who  thereby  (in  the  case  of  clauses  (i.),  (c),  and  ((Z.)) 
transfers  or  endeavours  to  transfer  any  share  or  interest 
belonging  to  such  owner,  or  thereby  receives  or  endeavours 
to  receive  any  money  due  to  any  such  owner  as  if  such 
offender  were  the  true  and  lawful  owner. 

'  37  &  38  Vict.  c.  36,  h.  1. 

'•^  24  &  2;>  Vict.  c.  9S,  s.  3.  IJeBides  tliese  general  cnactincntK  tlieic  arc 
various  special  Acts  piniiHliiiif^  j)erHonation  in  particular  cases.  See 
7  fJco.  4,  c.  16,  H.  3S,  ami  2  Will.  4,  c.  "(3,  h.  49,  as  to  the  personation  of 
Hohlicrs,  an<l  2S  h  29  Vict.  c.  124,  h.  8,  as  to  the  jieisoiiation  of  sailors 
entitled  to  |)ay,  ^c.  ;  26  &  27  Vict.  c.  73,  s.  14,  as  to  tlic  jJcrsoMation  of 
jMirwiiis  entitlcfj  to  India  stock  ;  30  fi.  31  Vict.  c.  131,  s.  3"),  as  to  llie 
personation  of  jiersons  int<!rcsle<l  in  joint  stock  <;oni|)anics  ;  33  it  34 
Vict.  c.  r>S,  s.  4,  as  t^i  the  fiersonation  of  stock-holders  under  tlic  National 
Del.t  Act  1870  ;  '>3  k  U\  Viet.  c.  45,  8.  9,  aidv,  Art.  !.').'>,  a«  to  frauds  on 
the  poli<:e  fuiui  hy  personation.' 


352  A    DIGEST   OF 


Article  405. 

acknowledging  recognisance,  etc.,  in  false  name. 

^  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  seven  years  penal  servitude,  who  without  lawful 
authority  or  excuse  (the  proof  of  which  is  on  the  party 
accused)  acknowledges  any  recognisance  or  bail,  or  any 
cognovit  actionem,  or  judgment,  or  any  deed  or  other  instru- 
ment before  any  Court,  judge,  or  other  person  lawfully 
authorised  in  that  behalf 

Article  406. 

personation  in  fraud  of  the  admiralty. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  on  con- 
viction thereof  to  five  years  penal  servitude,  who,  in  order  to 
receive  any  pay,  wages,  allotment,  prize-money,  bounty-money, 
grant,  or  other  allowance  in  the  nature  thereof,  half-pay 
pension,  or  allowance  from  the  compassionate  fund  of  the 
Navy,  payable  or  supposed  to  be  payable  by  the  Admiralty, 
or  any  other  money  so  payable  or  supposed  to  be  payable,  or 
any  effects  or  money  in  charge  or  supposed  to  be  in  charge 
of  the  Admiralty,  falsely  and  deceitfully  personates  any  person 
entitled  or  supposed  to  be  entitled  to  receive  the  same. 

Article  407. 

personation  at  elections. 

2  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  two  years  imprisonment  with  hard  labour,  who 
commits   the    offence   of    personation  or   aiding,   abetting, 

1  24  &  25  Vict.  c.  98,  s.  34. 

2  28  &  29  Vict.  c.  124,  s.  8.  This  offence  is  also  punishable  on  sinn- 
mary  conviction,  see  Oke's  Magisterial  Synopsis,  p.  152. 

3  46  &  47  Vict.  c.  51,  s.  6  ;  35  &  36  Vict.  c.  33,  s.  24  ;  and  Schedule  3 
of  46  &  47  Vict.  c.  51.  It  seems  that  hard  labour  must  be  inflicted,  as 
the  Act  says  imprisonment  "  together  with  "  hard  labour. 


THE    CEIMIXAL    LAW  353 

counselling,  or  procuring  that  offence  at  any  parliamentary  or 
municipal  election. 

A  jjei-son  is  for  all  purposes  of  the  laws  relating  to  parlia- 
mentary and  municipal  elections  deemed  to  be  guilty  of  the 
offence  of  personation  who,  at  an  election  for  a  county  or 
borough,  or  at  a  municipal  election,  applies  for  a  ballot  paper 
in  the  name  of  some  other  person,  whether  that  name  be  that 
of  a  person  living  or  dead,  or  of  a  fictitious  person,  or  who, 
having  voted  once  at  any  such  election,  applies  at  the  same 
election  for  a  ballot  paper  in  his  own  name. 


A    A 


354  A    DIGEST   OF 


CHAPTER  XLVII 

1  OFFENCES  RE  LA  TING  TO  THE  COIN 

2  Article  408. 
interpretation  of  terms. 

In  this  chapter  the  following  words  and  expressions  are 
used  in  the  following  senses : — 

^  "  Current,"  applied  to  coin,  means  coin  coined  in  any  of 
His  Majesty's  mints  or  lawfully  current  by  virtue  of  any 
proclamation  or  otherwise  in  any  part  of  His  Majesty's 
dominions,  whether  within  the  United  Kingdom   or  without. 

"  Copper,"  applied  to  coin,  includes  bronze  or  mixed  metal 
and  every  other  kind  of  coin  inferior  in  value  to  silver. 

"  Counterfeit  coin  "  means  coin  not  gemiinc,  but  resembling, 
or  apparently  intended  to  resemble  or  pass  for,  genuine  coin  ; 
and  includes  genuine  coin  prepared  or  altered  so  as  to 
resemble  or  pass  for  coin  of  a  higher  denomination. 

*  A  coin  fraudulently  filed  at  the  edges  so  as  to  remove  the 
milling,  and  on  which  a  new  milling  has  been  added  to  restore 
the  appearance  of  the  coin,  is  a  counterfeit  coin. 

^ "  Gild  "  and  "  silver,"  as  applied  to  coin,  include  casing 
with  gold  or  silver  respectively,  and  washing  and  colouring 
by  any  means  whatsoever  with  any  wash  or  materials  capable 
of  producing  the  a})pearance  of  gold  or  silver  respectively. 

"  Utter  "  includes  "  tender  "  and  "  put  off." 

"Having  in  possession"  includes  knowingly  and  wilfully 
having 

(a.)  in  the  possession  or  custody  of  any  other  person  ;  or 

1  3  Hist.  Cr.  Law,  177-180. 

2  24  &  2.5  Vict.  c.  99  ;  and  see  46  &  47  Vict.  c.  4;"),  s.  2  (Counterfeit 
Medals  Act)  in  Article  415. 

•'  24  &  25  c.  99,  s.  1.  The  interpretation  clause  is  rather  clumsy,  but 
the  text  will  be  found  to  represent  it  correctly,  though  as  to  the  word 
"  possession  "  in  an  abridged  shape. 

*  E,  V,   Flermanv,  1879,  4  Q.  B.  D.  284. 


THE    CRIMINAL    LAW  355 

(/\)  in  any  place  for  the  use  or  benefit  of  the  possessor  or 
any  other  person. 

Article  409. 

coining  and  possession  of  instruments  for  coining — 
penal  servitude  for  life. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  penal  servitude  for  life, 

(fi.)  ^  who  makes  any  counterfeit  gold  or  silver  current  coin  ; 
or 

(6.)  -  who  gilds  or  silvers  any  counterfeit  current  coin ;  or 

(c.)  -  who  gilds  or  silvers  any  piece  of  metal  or  mixture 
of  metals  whatever  of  a  fit  size  and  figure  to  be  coined,  with 
intent  that  it  shall  be  coined  into  counterfeit  current  gold  or 
silver  coin ;  or 

(fZ.)  -  who  gilds,  files,  or  alters  any  current  silver  or  copper 
coin  with  intent  to  make  it  resemble  or  pass  for  current  gold 
or  silver  coin  ;  or 

(c.)  ^who  buys,  sells,  receives,  pays,  or  puts  off  any 
counterfeit  gold  or  silver  current  coin  at  a  lower  rate  than 
it  imports  or  was  apparently  intended  to  import,  or  offers  to 
do  any  such  thing,  •*  whether  or  not  such  coin  was  in  a  fit 
state  to  be  uttered,  and  whether  or  not  the  counterfeiting 
theroijf  was  finished  ;  or 

(/.)  5  who  imports  or  receives  into  the  United  Kingdom 
from  beyond  the  seas  any  counterfeit  current  coin  knowing 
it  to  be  counterfeit ;  or 

(^.)  ^  who  without  lawful  excuse  makes,  mends,  begins,  or 
proceeds  to  make  or  rnond,  buys,  sells,  (jr  has  in  his  custody 
or  possession, 

(i.)  any  puncheon,  counter-puncheon,  matrix,  stamp,  die, 

pattern,  or  mould,  in  or  upon  which  is  made  or  impressed  or 

which  is  adapted  and  intended  to  make  or  impress  the  figure, 

tamp,  or  ajjparent  resemblance  of  both  or  eithn-  of  the  sides 

mI  any  fiirrcnt  gold  or  silver  cvjin,  or  of  any  coin  of  an\' foicign 

'  'l\  St.  2:>  Vict.  c.  1M»,  B.  •_'.  -  ll.i.l.  H.  ;t. 

■■  Ihid.  f.  6.  >  ll.i.l.  H.  .-{II. 

-  lbi<l.  H.  7.  "  Ilii.l.  s.  '-'I 


356  A    DIGEST   OF 


state,  prince,  or  country,  or  any  part  of  either  side  thereof, 
knowingly ;  or 

(ii.)  any  edgcr,  edging  or  other  tool,  collar,  instrument,  or 
engine  adapted  and  intended  for  the  marking  of  coin  round 
the  edges  with  letters,  grainings,  or  other  marks  or  figures 
apparently  resembling  the  marks  on  the  edge  of  such  coin 
as  aforesaid,  knowing  the  same  to  bo  so  adapted  and 
intended ;  or 

(iii.)  any  press  for  coinage,  or  any  cutting  engine  for  cut- 
ting, by  force  of  a  screw  or  any  other  contrivance,  round 
blanks  out  of  gold,  silver,  or  other  metal  or  mixture  of  metals, 
or  any  other  machine,  knowing  such  press  to  be  a  press  for 
coinage,  or  knowing  such  engine  or  machine  to  have  been,  or 
to  be  intended  to  be,  used  for  or  in  order  to  counterfeiting 
any  such  coin  as  aforesaid ;  or 

(h.)  ^  who  knowingly  conveys  out  of  any  of  His  Majesty's 
mints  any  puncheon,  counter-puncheon,  matrix,  stamp,  die, 
pattern,  mould,  edger,  edging  or  other  tool,  collar,  instru- 
ment, press,  or  engine  used  or  employed  in  coining,  or  any 
useful  part  of  any  of  the  said  things,  or  any  coin,  bullion, 
metal,  or  mixture  of  metals. 

2  None  of  the  acts  specified  in  (c),  (/.),  (^.),  and  (h.)  is  an 
offence,  unless  it  is  done  without  lawful  authority  or  excuse, 
to  be  proved  by  the  party  accused. 

Article  410. 

clipping — penal  servitude  for  fourteen  years. 

^  Every  one  commits  a  felon}^  and  is  liable  on  conviction  to 
fourteen  years  penal  servitude,  who  impairs,  diminishes,  or 
lightens  any  current  gold  or  silver  coin  with  intent  that 
when  so  dealt  with  it  may  pass  as  current  gold  or  silver 
coin. 

J  24  &  25  Vict.  c.  99,  s.  25. 

2  A  orders  a  die  for  coining  counterfeit  half-crowns  (see  clause  (g.)  (i.) ) 
from  B.  B  communicates  with  the  Mint,  and  is  permitted  by  them  to 
finish  and  deliver  the  die  to  A.  A  receives  it.  A  lias  the  die  in  his 
possession  without  lawful  excuse  :  B.  v.  Harvey,  1871,  I  C.  C.  R.  285. 

3  24  &  25  Vict.  c.  99,  s,  4. 


THE    CRIMINAL    LAW  357 


Article  41  I. 

COINING    COPPER    OR    FOREIGN     MONEY — PENAL    SERVITUDE 
FOR  SEVEN     YEARS. 

Every  one  commits  felony,  and  is  liable  to  seven  years 
penal  servitude, 

(a.)  ^  who  counterfeits  the  King's  current  copper  coin ;  or 

(6.)  ^  who,  without  lawful  authority  or  excuse  (the  proof 
whereof  lies  upon  him),  knowingly  makes  or  mends,  or 
begins  or  proceeds  to  make  or  mend,  or  buy  or  sell,  or  have 
in  his  custody  or  possession,  any  instrument,  tool,  or  engine 
adapted  and  intended  for  counterfeiting  any  of  the  King's 
current  copper  coin  ;  or 

(c.)  -  who  bu3s,  sells,  receives,  pays,  or  puts  off  any  coun- 
terfeit copper  coin  at  a  lower  rate  or  value  than  the  same 
imports  or  was  apparently  intended  to  import  ;  or 

{d?)  ^who  makes  counterfeit  gold  or  silver  coin  of  any 
foreign  prince,  state,  or  country  ; 

^  whether  or  not,  as  regards  (a.),  (c),  and  {d^,  such  coin 
was  in  a  fit  state  to  be  uttered,  and  whether  or  not  the 
counterfeiting  was  finished  ;  or 

(e.)  '•'  who  brings  or  receives  into  the  United  Kingdom 
counterfeit  gold  or  silver  coin  of  any  foreign  prince,  state, 
or  country,  knowing  the  same  to  be  counterfeit,  without 
lawful  authority  or  excuse,  to  be  proved  by  the  party 
accused  ;  or 

(/.)  ''who  has  in  his  custody  or  possession  any  filings  or 
clippings,  gold  or  silver  bullion,  or  gold  or  silver  in  dust  or 
solution,  obtained  by  impaii-ing  current  gold  or  silvei-  coin, 
knowing  it  to  have  been  so  obtained. 

'  24  &  25  Vict.  c.  99,  h.   14.  -  Il)i.l.  s.  14. 

3  Ibi(L  8.  18.  *   I  hid.  .s.  .'{(t. 

•'•  Ilji.l.  K.  19.  "  Il.i.l.  s.  f). 


358  A    DIGEST   OF 


Article  412. 

coining   foreign  copper  money — penal  servitude  for 
seven   years. 

^  Every  one  commits  a  misdemeanour  who  makes  any 
counterfeit  copper  coin  of  any  foreign  state  ;  the  punishment 
is,  for  the  first  offence,  one  year's  imprisonment  without  hard 
labour ;  for  the  second  offence,  after  conviction  of  the  first, 
seven  years  penal  servitude. 


Article  413. 
uttering  and  possessing  with  intent  to  utter. 

Every  one  commits  a  misdemeanour,  or  in  case  (e.)  a  felony, 
and  is  liable  to  a  punishment  of  imprisonment  for  one  year 
with  hard  labour  in  cases  {a.)  and  (h.),  two  years  imprisonment 
with  hard  labour  in  case  (c),  five  years  penal  servitude  in 
case  (d.),  and  penal  servitude  for  life  in  case  (e.), 

(a.)  ^  who,  without  lawful  authority  or  excuse  (to  be  proved 
by  him),  exports  or  puts  on  board  any  vessel  for  the  purpose 
of  being  exported  from  the  United  Kingdom  any  counter- 
feit current  coin  whatever,  knowing  the  same  to  be  counter- 
feit ;  or 

(h.)  ^  who  utters  counterfeit  current  gold  or  silver  coin, 
knowing  it  to  be  counterfeit ;  or 

(c.)'*who  at  the  time  of  such  uttering  as  is  specified  in 
clause  (6.)  has  in  his  custody  or  possession  any  other  piece 
of  such  counterfeit  coin,  or  who  on  the  same  day,  or  on 
any  of  the  ten  days  next  ensuing,  utters  any  such  coun- 
terfeit coin,  knowing  the  same  to  be  counterfeit ;  or 

(d.)  ^  who  has  in  his  possession  three  or  more  pieces  of 
counterfeit  current  gold  or  silver  coin,  with  intent  to  utter 
them  or  any  of  them  ;  or 

1  24  &  25  Vict.  c.  99,  s.  22.  -  Ibid.  s.  8. 

^   Ibid.  s.  9.  '  Ibid.  s.  Id. 

s  Ibid.  s.   11. 


THE    CRIMINAL    LAW  359 

{e.)  1  who  commits  any  of  the  above-mentioned  offences, 
after  having  been  previously  convicted  -  at  any  time  of  any 
one  of  them,  or  of  any  felony  relating  to  the  coin. 

^  The  offence  defined  in  clause  (&.)  is  complete  whether 
or  not  the  coin  was  in  a  fit  state  to  be  uttered,  and  whether 
or  not  the  counterfeitinsr  thereof  was  finished. 


Article  414. 
uttering  base  copper  or  foreigx  coix. 

Every  one  commits  a  misdemeanour 

{a.)  •*  who  utters  any  counterfeit  current  copper  coin, 
knowing  it  to  be  counterfeit ;   or 

(b.)  *  who  has  in  his  possession  three  or  more  pieces  of 
such  counterfeit  coin,  knowing  the  same  to  be  false  and  with 
intent  to  utter  any  of  them  ;  or 

(c.)  ^who,  with  intent  to  defraud,  utters  as  cuiTent  gold  or 
silver  coin  any  coin  which  is  not  such  coin,  or  any  medal  or 
piece  of  metal  or  mixed  metal  resembling  in  size,  figure,  and 
colour  the  current  coin  as  which  it  is  uttered,  but  being  of 
less  value  ;   or 

{d.)  *^  who  defaces  any  current  coin  whatever  by  stamping 
thereon  any  names  or  words,  whether  such  coin  is  or  is  not 
thereby  diminished  or  lightened  ;    or 

(c.)  ^  who  utters  any  counterfeit  gold  or  silver  coin  of  any 
foreign  prince,  state,  or  country,  knowing  it  tt^  be  counter- 
feit. 

^The    offences    defined   in    clauses    (a.),  (r.),  and   {<-.)  are 

•  24  &  25  Vicjt.  e.  99,  s.   12. 

-  Such  a  conviction  means  tlic  finding  of  a  verdict  of  guilty  ;  that  no 
ju<lgnient  followH  tlie  verdict  is  iinnmterial  :  R.  v.  Blahy,  1894,  2  i).  B. 
I7n. 

^  24  &  25  Vict.  c.  99,  s.  :i(». 

'   Il.id.  H.  15. 

'  Ihid.  M.  \',\.  Ah  to  tlie  degree  of  reHcnihlance  neccHsary  to  hring  a 
nie<lal  within  tluH  Mection,  wee  /'.  v.   h'ohirtion,  iSd.'i,  1^.  it  ( '.  (Jn). 

«   Ihid.  H.   1«. 

■    Il.id.  H.  20. 

"    Il.id.  M.  3(». 


360  A    DIGEST   OF 


complete,  Avhcthcr  or  not  the  coin  was  in  a  fit  state  to  be 
uttered,  and  -whether  or  not  the  counterfeiting  thereof  was 
finished. 

The  punishment  for  each  of  the  offences  in  chiuses  (a.), 
(b.),  (c),  and  (d.)  is  imprisonment  for  one  year  with  hard 
labour. 

The  punishment  for  the  offence  in  clause  (e.)  is,  for  the 
first  offence,  six  months  imprisonment  with  hard  labour  ; 
^  for  a  second  offence,  after  a  previous  conviction  therefor, 
two  years  imprisonment  and  hard  labour ;  ^  and  after  two 
previous  convictions  the  offence  is  felony,  and  the  offender 
is  liable  to  penal  servitude  for  life. 


Article  415. 
making  or  selling  medals  resembling  coin. 

^  Every  one  commits  a  misdemeanour,  and  is  liable  on 
conviction  thereof  to  be  imprisoned  with  hard  labour  for  one 
year,  who 

without  due  authority  or  excuse  (the  proof  whereof  lies  on 
the  person  accused) — 

makes  or  has  in  his  possession  for  sale,  or  offers  for  sale,  or 
sells, 

any  medal,  cast,  coin,  or  other  like  thing  made  wholly 
or  partially  of  metal  or  any  metallic  combination,  and 
resembling  in  size,  figure,  and  colour  any  of  the  King's 
current  gold  or  silver  coin,  or  having  thereon  a  device 
resembling  any  device  on  any  of  the  King's  current  gold 
or  silver  coin,  or  being  so  formed  that  it  can  by  gilding, 
silvering,  colouring,  washing,  or  other  like  process,  be  so 
dealt  with  as  to  resemble  any  of  the  King's  current  gold 
or  silver  coin. 

1  24  &  25  Vict.  c.  99,  i?.  21. 

-  46  &  47  Vict.  c.  4(5,  s.  2.      As  to  "  current  coin,"  see  Art.  408. 


THE    CRIMINAL    LAW  361 

Article  416. 

principals  and  accessories. 

^  Every  principal  in  the  second  degree  in  and  every  ac- 
cessory before  the  fact  to  any  felony  under  the  Coining  Act 
1861  (24  &  25  Yict.  c.  99)  is  punishable  in  the  same  manner 
as  a  principal  in  the  first  degree  is  by  the  Act  punishable. 

'  24  &  25  Vict.  c.  99,  s.  35. 


36l>  a    digest   of 


CHAPTER   XLVIII 

» MALICIOUS  INJURIES  TO  PROPERTY 

Article  417. 
2  burning  ships  of  war,  etc. — felony — death. 

Every  one  is  guilty  of  felony,  and  must  upon  conviction 
thereof  be  sentenced  to  death,  who  either  within  this  realm 
or'  in  any  of  the  islands,  countries,  ports,  or  places  thereto 
belonging, 

wilfully  and  maliciously  sets  on  fire,  burns,  or  otherwise 
destroys ;   or 

causes  to  be  set  on  fire  or  burnt  or  otherwise  destroyed ;  or 

aids,  procures,  abets,  or  assists  in  the  setting  on  fire  or 
burning  or  otherwise  destroying 

(a.)  any  of  His  Majesty's  ships  or  vessels  of  war,  whether 
afloat  or  building  or  begun  to  be  built  in  any  of  His 
Majesty's  dockyards,  or  building  or  repairing  by  contract  in 
any  private  3'ards  for  the  use  of  His  Majesty ;  or 

(h.)  any  of  His  Majesty's  arsenals,  magazines,  dockyards, 
rope-yards,  victualling  offices,  or  any  of  the  buildings  erected 
therein  or  belonging  thereto  ;  or 

(c.)  any  timber  or  materials  there  placed  for  building, 
repairing,  or  fitting  out  of  ships  or  vessels  ;   or 

yd.)  any  of  His  Majesty's  military,  naval,  or  victualling 
stores  or  other  ammunition  of  war ;  or 

(e.)  any  place  or  places  where  any  such  military,  naval,  or 
victualling  stores  or  other  ammunition  of  war  is,  are,  or  shall 
be  kept,  placed,  or  deposited. 

1  3  Hist.  Cr.  Law,  188-190. 

2  12  Geo.  3,  c.  24.  The  punishment  is  not  altered  either  by  7  &  8 
Geo.  4,  c.  28,  or  1  Vict.  c.  91.  The  Court,  however,  may  order  the 
judgment  of  death  to  be  recorded  :  4  Geo.  4,  c.  48. 


THE    CRIMINAL    LAW  363 


Article  418. 

offences  committed  by  or  in  relation  to  explosive 
substances. 

^  Every  one  is  guilty  of  felony,  and  is  liable  on  conviction 
thereof  in  case  (a.)  to  penal  servitude  for  life,  in  case  (&.)  to 
penal  servitude  for  twenty  years,  and  in  case  (c.)  to  penal 
servitude  for  fourteen  years — 

(a.)  who  unlawfully  and  maliciously  causes  by  any  ex- 
plosive substance  an  explosion  of  a  nature  likely  to  endanger 
life  or  to  cause  serious  injury  to  property,  whether  any  injury 
to  person  or  property  has  been  actually  caused  or  not ; 

(b.)  who  within  or  (being  a  subject  of  His  Majesty) 
without  His  Majesty's  dominions  unlawfully  and  ma- 
liciously— 

(i.)  does  any  act  with  intent  to  cause  by  an  explosive 
substance,  or  conspires  to  cause  by  an  explosive  substance, 
an  explosion  in  the  United  Kingdom  of  a  nature  likely 
to  endanger  life  or  to  cause  serious  injury  to  property  ;  or 
(ii.)  makes  or  has  in  his  possession  or  under  his  control 
any  explosive  substance  with  intent  by  means  thereof  to 
endanger  life,  or  cause  serious  injury  to  property  in  the 
United  Kingdom,  or  to  enable  any  other  person  by  moans 
thereof  to  endanger  life  or  cause  serious  injury  to  property 
in  the  United  Kingdom, 

whether  any  explosion  does  or  not  take  placu,  and 
whether  any  injury  to  person  or  property  has  been 
actually  caused  or  not ; 

(c.)  (i.)  who  makes  or  knowingly  has  in  his  possession  or 
under  his  control  any  explosive  substance,  under  such  cir- 
cumstances as  to  give  rise  to  a  reasonable  suspicion  that  ho 
is  not  making  it  or  does  not  have  it  in  his  possession  or  under 
his  control  for  a  lawful  object,  unless  he  can  show  that  he 
made  it  or  had  it  in  his  ]}ossessi(jn  or  under  his  control  for 
a  lawful  object.  In  this  case  the  exi)h)si\c  substance  is 
r<irf(.'it<'(l. 

I     IC,  VicI,  c.  -A.  SH.  -J,  ;{,  I,  .'),  ti,  ;in>l  !t. 


3G4  A    DIGEST   OF 


(ii.)  In  any  proceeding  against  any  person  for  a  crime 
under  this  clause,  such  person  and  his  wife,  or  husband,  as 
the  case  may  be,  may,  if  such  person  thinks  fit,  be  called, 
sworn,  examined,  and  cross-examined  as  an  ordinary  witness 
in  the  case. 

Every  one  is  guilty  of  felony,  and  is  upon  conviction 
thereof  liable  to  the  same  punishment  as  if  he  had  been 
guilty  as  a  principal,  who 

within  or  (being  a  subject  of  His  Majesty)  without  His 
Majesty's  dominions,  by  the  supply  of  or  solicitation  for 
money,  the  providing  of  premises,  the  supply  of  materials,  or 
in  any  manner  whatsoever,  procures,  counsels,  aids,  abets,  or 
is  accessory  to,  the  commission  of  any  crime  under  this 
Article. 

In  this  Article  the  expression  "  explosive  substance " 
includes  any  materials  for  making  any  explosive  substance  ; 
also  any  apparatus,  machine,  implement,  or  materials  used, 
or  intended  to  be  used,  or  adapted  for  causing,  or  aiding  in 
causing,  any  explosion  in  or  with  any  explosive  substance  ; 
also  any  part  of  any  such  apparatus,  machine,  or  implement. 


1  Article  419. 
arson,  etc. — penal  servitude  for  life. 

Every  one  commits  felony,  and  is  liable  on  conviction 
thereof  to  penal  servitude  for  life,  who  unlawfully  and 
maliciously  does  any  of  the  following  acts  (that  is  to  say): — 

(a.)  2  who  ^  sets  fire  to  any  *  place  of  divine  worship ; 

^  or  to  any  dwelling-house,  any  person  being  therein ; 

1  24  &  25  Vict.  c.  97. 

2  Ibid.  s.  1,  W. 

^  As  to  what  constitutes  "  setting  fire,"  it  is  not  necessary  that  flame 
should  be  seen  :  B.  v.  Sla/lion,  1834,  1  Moo.  398  ;  but  it  is  not  sufficient 
that  wood  should  be  scorclied  black  :  B.  v.  Russell,  1 842,  Car.  &  M.  541. 
It  is  sufficient  if  the  wood  has  been  at  a  red  heat  :  li.  v.  Parker,  1839, 
9  C.  &  P.  45.  I  suppose  the  question  is  whether  the  thing  burnt  has  or 
has  not  begun  to  be  decomposed  by  the  action  of  fire. 

■*  "  Church,  chapel,  meeting-house,  or  other  place  of  divine  worship." 

^  24  &  25  Vict.  c.  97,  s.  2,  W. 


THE   CRIMINAL   LAW  365 

^  or  to  any  ^  private  building,  whether  in  the  possession  of 
the  offender  or  of  any  other  person,  with  intent  to  injure  or 
defraud  any  person ; 

^or  to  any  station,  engine-house,  warehouse,  or  other 
building  belonging  or  appertaining  to  any  railway,  port, 
dock,  harbour,  or  canal,  or  other  navigation ; 

^  or  to  any  ^  public  building ; 

^  or  to  any  stack  of  corn,  grain,  pulse,  tares,  hay,  straw, 
haulm,  stubble,  any  cultivated  vegetable  produce,  furze, 
gorse,  heath,  fern,  turf,  peat,  coals,  charcoal,  wood,  or  bark, 
or  to  any  steer  of  wood  or  bark ; 

"  or  to  any  mine  of  coal,  cannel  coal,  anthracite,  or  other 
mineral  fuel ; 

^  or  to  any  ship,  whether  in  a  complete  or  unfinished  state ;  or 

{!))  ^  who  by  the  explosion  of  gunpowder  or  other  ex- 
plosive substance  throws  down  or  damages  the  whole  or  any 
part  of  any  dwelling-house,  any  person  being  therein,  or  of 
any  building  so  as  to  endanger  the  life  of  any  person ;  or 

(c)  ^'^  who  cuts,  breaks,  destroys,  or  damages  with  intent 
to  destroy  or  render  useless  any  of  the  ^^  goods  or  articles 
mentioned  below   being   in  any  stage   of  manufacture,  or 

1  24  &  25  Vict.  c.  97,  s.  3,  W. 

-  Private  building  means  "house,  stable,  coach-house,  out-house,  ware- 
house, office,  shop,  mill,  malt-house,  hop-oast,  barn,  store-house,  granary, 
hovel,  shed,"  fold,  farm  building,  "building  or  erection  used  in  farming 
land,  or  in  carrying  on  anj'  trade  or  manufacture,  or  any  brancii  thereof." 
Many  cases  are  collected  in  Fisher's  Digest,  1634-1637,  as  to  the  buildings 
wiiich  fall  under  one  or  the  other  of  these  terms.  But  they  are  all  nisi 
prius  rulings,  and  the  matter  is  too  minute  to  be  referred  to  in  detail  here. 

3  24  &  25  Vict.  c.  97,  s.  4,  W. 

*  Ibid.  8.  5. 

•''  Public  building  means  building  other  than  such  as  arc  before  men- 
tioned, "  belonging  to  the  King  or  to  any  county,  riding,  division,  city, 
Imrough,  po<^)r-law  union,  parish  or  place,  or  to  any  university  or  college, 
or  hall  of  any  university,  or  to  any  inn  of  court,  or  devoted  or  dedicated 
to  public  use  or  ornament,  or  erected  or  maintained  by  public  subscription 
or  contribution." 

«  24  &  25  Vict.  c.  97,  s.  17,  W. 

'  Ibid.  H.  26,  W. 

*  Ibirl.  H.  42,  \V.,  and  see  a.  43  and  Note  2,  p.  .'!()7,  post. 
»  Ibid.  H.  9,  W. 

"'  Ibid.  H.   14,  W. 

"  "  Any  goodrt  or  artit'lo  of  nilk,  wonlji-ii,  linen,  rotton,  liair,  nioliair,  or 
alpaca,  or  of  any  two  or  more  of  thonc  matcrialH  mixed  with  ••ach  other  or 
mixed  with  any  other  material,  or  any  framework  knitted  pieee,  stoi.king, 


366  A    DIGEST  OF 


any  ^  tool  or  machinery  employed  in  manufacturing  or  prepar- 
ing such  goods,  or  who  by  force  enters  any  house,  shop,  build- 
ing, or  place  with  intent  to  commit  any  such  offence  ;  or 

(d.)  -  who  breaks  down,  cuts  down,  or  otherwise  damages 
or  destroys  any  sea  bank,  or  sea  wall,  or  the  bank,  dam,  or 
wall  of  or  belonging  to  any  water  "^  whereby  any  land  or 
building  shall  be,  or  shall  be  in  danger  of  being,  overflowed 
or  damaged  ;  or 

(c.)  *  who  ^  destroys  any  ^  work  belonging  to  any  port, 
harbour,  dock,  or  reservoir,  or  on  or  belonging  to  any  navi- 
gable river  or  canal ;  or 

(/.)  ^  who  pulls  or  throws  down,  or  in  anywise  destroys, 
any  bridge  (whether  over  any  stream  of  water  or  not)  or 
any  viaduct  or  aqueduct  over  or  under  which  any  highway, 
railway,  or  canal  passes  ;  or 

(g.)  ^  who  does  any  injury  with  intent  and  so  as  thereby 
to  render  dangerous  or  impassable  any  such  bridge,  viaduct, 
or  aqueduct,  or  any  highway,  railway,  or  canal  passing  over 
or  under  the  same  or  any  part  thereof ;  or 

(h.)  ^  who  with  intent  to  obstruct,  upset,  overthrow,  injure, 
or  destroy  any  engine,  tender,  carriage,  or  truck  using  any 
railway ; 

puts,  places,  casts,  or  throws  ^'^  anything  Avhatcver  upon  or 
across  any  railway  ;   or 


hose,  or  lace,  being  in  the  loom  or  frame,  or  on  any  machine  or  engine,  or 
on  the  rack  or  tenters,  or  in  any  stage,  process,  or  progress  of  manu- 
facture .  .  /'or  any  warp  or  shute  of  any  such  article,  or  any  framework 
knitted  piece,  stocking,  liose,  or  lace. 

^  An}'  "  loom,  frame,  machine,  engine,  rack,  tackle,  tool,  or  implement, 
whether  fixed  or  movable,  prepared  for  or  employed  in  carding,  spinning, 
throwing,  weaving,  fulling,  shearing,  or  otherwise  manufacturing  or 
preparing  any  such  goods  or  articles." 

2  24  &  2o  Vict.  c.  97,  s.  30,  W. 

•^  Water  means  "river,  canal,  drain,  reservoir,  pool,  or  marsh." 

^  24  &  25  Vict.  c.  97,  s.  30,  W. 

•'  Throws,  breaks,  or  cuts  down,  levels,  undermines,  or  otherwise 
destroys. 

"  Wox-k  =  "  quaj',  wharf,  jetty,  lock,  sluice,  floodgate,  weir,  tunnel, 
towing  path,  drain,  watercourse,  or  other  work." 

7  24  &  25  Vict.  c.  97,  s.  33,  W.  8  D^ia.  s.  33,  W. 

*  Ibid.  s.  35,  W.     The  whole  section  might  be  expressed  thus  :   "who 
attempts  to  obstruct,"  &c. 
it>  "  Any  wood,  stone,  or  other  matter  of  thing." 


THE    GRIMIXAL    LAW  367 

takes  up,  remov'es,  or  displaces  any  rail,  sleeper,  or  other 
thing  belonging  to  any  raihva}- ;  or 

turns,  moves,  or  diverts  any  points  or  other  machinery 
belonging  to  any  railway  ;  or 

makes,  shows,  hides,  or  removes  any  signal  or  light  upon 
or  near  to  any  railway ;  or 

does,  or  causes  to  be  done,  any  other  matter  or  thing ;  or 

(z.)  ^  who  casts  away  or  in  anywise  destroys  any  ship  or 
vessel  whether  complete  or  in  an  unfinished  state  ;  or 

(y.)  -who  casts  away  or  in  anywise  destroys  any  ship  or 
vessel  with  intent  thereby  to  prejudice  the  owner  or  part 
owner  of  such  ship  or  vessel  or  of  any  goods  on  board  the 
same,  or  any  insurer  of  the  ship,  freight,  or  goods ;  or 

(/.•.)  ^who  with  intent  *to  bring  any  ship,  vessel,  or  boat 
into  danger,  masks,  alters,  or  removes  any  light  or  signal,  or 
exhibits  any  false  light  or  signal ;  or 

(Z.)  ^  does  anything  tending  to  the  immediate  loss  or  de- 
struction of  any  ship,  vessel,  or  boat  for  which  no  punish- 
ment is  otherwise  provided  by  the  24  &  25  Vict.  c.  97. 


Article  420. 

arson',    ixjriues    to    ships  or   cattle,   etc. — fourteen 
years  penal  servitude. 

Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  fourteen  years  penal  servitude,  who  unlawfully  and 
maliciously  does  any  of  the  following  things  (that  is  to  say)  — 

(«.)  ''who  sets  fire  t(j  any  building  other  than  those  men- 

'  24  &  25  Vict.  c.  97,  8.  42,  W. 

-  Ihid.  8.  4.3,  W.     This  section  and  s.  42  arc  like  (livi<llng  llieft  into  two 
oflTences — theft,  and  tlieft  with  intent  to  injure  the  owner  of  the  stolen 
;/ii(m1k — each  oH'ence  heing  punished  in  the  sunie  way. 
24  fi.  2r>  V^i.rt.  <;.  »7,  8.  47,  W. 

'  Tiie  wf)rd  "  maliciously  "  is  here  omitted,  though  "  unlaw  fully  "  is 
retained.  The  rwison,  no  d(»ul)t,  is  that  one  partitid.ir  fumi  of  malice, 
viz.,  an  intent  to  bring  a  shif)  into  danger,  is  specitied. 

•  24  &  25  Vict.  <:.  97,  H.  47,  W. 

"  Ihid.  B.  «,  W. 


368  A    DIGEST   O^F 


tioned  in  ^Article  419  (a.)  (whether  finished  or  unfinished)  ;2 
or 

(h.)  ^  who  sets  fire  to  ;in ything  in,  against,  or  under  any 
building  under  such  circumstances  that  if  the  building  were 
thereby  set  fire  to  the  offence  would  amount  to  felony ;  or 

(c.)  *who  sets  fire  to  any  crop  of  hay,  grass,  corn,  grain, 
pulse,  or  cultivated  vegetable  produce,  whether  standing  or 
cut  down,  or  to  any  part  of  any  wood,  coppice,  or  plantation 
of  trees,  or  to  any  heath,  gorse,  furze,  or  fern,  wheresoever 
the  same  may  be  growing ;  or 

(d.)  ^  who  attempts  by  any  overt  act  to  set  fire  to  any 
building  or  to  anything  mentioned  in  clause  (b.)  of  this 
Article,  or  to  any  mine  mentioned  in  Article  419,  clause  («.) ; 
or  to  set  fire  to,  cast  away,  or  destroy  any  ship  or  vessel 
under  such  circumstances  that  if  such  building,  mine,  or  ship 
were  thereby  set  fire  to,  cast  away,  or  destroyed,  the  offender 
would  be  guilty  of  felony  ;  or 

(e.)  ^  who  places  or  throws  in,  into,  upon, ''  under, against,  or 
near  any  building,  ship,  or  vessel  any  gunpowder  or  other 

^  If  it  were  not  for  the  arbitrary  and  practically  unimportant  distinction 
between  the  punishment  for  this  oftence  and  for  the  offences  defined  in 
Art.  419,  clause  (a.),  the  following  enactment  would  include  them  all : — 
"Whoever  sets  fire  to  any  building  whatever  shall  be  liable  to  penal  servi- 
tude for  life."  This  would  reduce  six  cumbrous  sections,  filling  a  page  of 
Chitty's  Statutes,  to  two  lines. 

'■^  B.v.  Manning,  1871,  1  C.  C.  R.  338.  It  is  a  question  for  a  jury  what 
constitutes  a  building. 

3  24  &  25  Vict.  c.  97,  s.  7.  In  B.  v.  Child,  1871,  1  C.  C.  R.  307,  it 
was  said  that  the  Legislature  probably  meant  to  enact  that,  if  any  person 
sets  fire  to  anything  in  a  house  likely  to  set  fire  to  the  house  itself,  he 
should  be  guilty  of  felon}-,  but  that  they  had  failed  to  say  so.  In  that  case 
A  set  fire  to  goods  in  a  house  to  spite  the  owner,  but  with  no  intention  to 
burn  the  house,  and  (as  the  jury  were  considered  by  the  Court  to  have 
found)  not  thinking  it  probable  that  what  he  was  doing  would  have  that 
effect,  and  not  being  reckless  on  the  subject.  My  impression  is  that  the 
Legislature  said  what  it  meant,  but  that  the  judge  who  reserved  the  case 
(Blackburn,  J.)  was  not  followed  by  the  jury  in  the  directions  which 
he  gave. 

4  24  &  25  Vict.  c.  97,  s.  16,  W. 
^  Ibid.  ss.  8,  W.,  27,  44,  W. 

G  Ibid.  ss.  10,  W.,  45,  W. 

^  The  word  "  under  "  does  not  occur  in  s.  45,  which  applies  to  ships  and 
vessels  and  which  repeats  s.  10  verbatim,  with  the  exception  of  the 
omission  of  that  word  and  the  substitution  of  "injury  is  effected  "  for 
"  damage  is  caused."  The  omission  of  "  under  "  as  to  vessels  dates  from 
before  the  invention  of  torpe<loes. 


THE    CMIMiyAL    LAW  369 

explosive  substance  with  intent  to  destroy  or  damage  any 
such  building,  ship,  or  vessel,  or  any  engine,  machinery, 
working  tools,  fixtures,  goods,  or  chattels,  Avhether  or  not 
explosion  takes  place,  and  whether  or  not  any  damage  is 
caused ;  or 

(/.)  ^  who  destroys  any  part  of  any  ship  or  vessel  in  dis- 
tress, wrecked,  stranded,  or  cast  on  shore,  or  any  goods, 
merchandise,  or  articles  of  any  kind  belonging  to  such  ship 
or  vessel ;  or 

{g.)  -  who  kills,  maims,  or  wounds  any  cattle ;  or 
(A.)  ^who  cuts  or  otherwise  destroys  any  hopbinds  growing 
on  poles  in  any  plantation  of  hops. 


Article  421. 

threats  to  burn,  etc. — ten  years  penal  servitude. 

■*  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  ten  years  penal  servitude,  who,  knowing  the  con- 
tents thereof,  sends,  delivers,  utters,  or  directly  or  indirectly 
causes  to  be  received  any  letter  or  writing  threatening  to 
burn  or  destroy  any  house,  barn,  or  other  building,  or  any  rick 
or  stack  of  grain,  hay,  or  straw,  or  other  agi'icultural  produce, 
whether  in  or  under  any  building  or  not,  or  any  ship  or  vessel, 
or  to  kill,  maim,  or  wound  any  cattle. 


Article  422. 

MAF.iriors    MISCHIEF — SEVEN   YEARS   PENAL   SERVITUDE. 
Every  one  commits  felony,  an<l  is  liabl(3  upon  conviction  to 

'   -24  &  ■!-}  Vict.  c.  57,  H.  49. 

-  Ibid.  H.  40.  Am  injury  indicted  by  tiie  luiml  niiiy  be  a  \v<jiin(l  :  A'.  \. 
liit/lork,  iHfjH,  1  (,'.  (,'.  li.  II.").  On  repealed  HtatuteH  to  tlie  Hanic  eH'e('l, 
HC-e  /{.  V.  Oir,„.s,  IH-_'H,  1  .\I..o.  'JU.l,  and  A',  v.  llwih^,  \H'1{\,  ti  ('.  k  V. 
4*JM,  in  wbi<;li  I'ar^e,  I!.,  Haid  setting  a  dog  at  an  animal  wlieieby  it  was 
bitten  wan  not  a  maiming  or  wounding. 
•_'4  k  2.-J  Vict.  c.  «7,  H.  H>,  W. 
Ibid.  M.  50,  W. 

II    It 


370  A    DIGEST   OF 


seven  years  penal  scrvitiuk',  who  does  any  of  the  following  acts 
unlawfully  and  maliciously  (that  is  to  say), 

(a.)  ^  who  cuts,  breaks,  destroys,  or  damages  with  intent 
to  destroy  or  render  useless  any  machine  or  engine,  whether 
fixed  or  movable,  used  or  intended  to  be  used  for  "any 
agricultural  operation,  or  pre})ared  for  or  employed  in  any 
manufacture  other  than  those  enumerated  in  note  11  to 
Article  419  (c),  or  any  tool  or  implement,  whether  fixed  or 
movable,  prepared  for  or  employed  in  any  such  manu- 
facture ; 

(b.)  ^  or  who  by  any  overt  act  attempts  to  set  fire  to  any 
of  the  stacks  or  produce  mentioned  in  Article  419,  clause  (a.), 
or  to  anything  mentioned  in  Article  420,  clause  (c),  under 
such  circumstances  that  if  the  same  were  set  on  fire  the 
offender  would  be  guilty  of  felony  ; 

(c.)  *  or  who,  with  intent  thereby  to  destroy  or  damage 
any  mine  or  to  hinder  ^[obstruct]  or  delay  the  working 
thereof, 

causes  any  Avater  to  be  conveyed  or  run  into  any  mine,  or 
into  any  subterranean  passage  communicating  therewith  ; 

or  Epulis  down,  fills  up,  obstructs,  or  damages  with  intent 
to  destroy,  obstruct,  or  render  useless  any  airway,  waterway, 
drain,  pit  level,  or  shaft  of  or  belonging  to  any  mine ;  or 

*  ^  pulls  down  or  destroys,  or  damages  with  intent  to  de- 
stroy or  render  useless,  any  steam  or  other  engine  for  sinking, 
draining,  ventilating,  or  working  any  mine,  or  in  anywise 
assisting  ^  therein,  or  any  appliance  or  apparatus  in  con- 
nection  with   any  such  engine,  or  any  staith,  building,  or 

1  24  &  25  Vict.  c.  97,  s.  15,  W.  Some  oases  on  the  application  of 
this  section  to  imperfect  machines  are  collected  in  Fisher's  Digest,  pp. 
1992-1994. 

2  "  Sowing,  reaping,  mowing,  thi'eshing,  ploughing,  or  draining,  or  for 
performing  any  other  agricultural  operation." 

'  24  &  25  Vict.  c.  97,  s.  18,  W. 

*  Ibid.  s.  28,  W. 

■''  This  word  refers  only  to  the  paragraph  marked  with  a  *. 

"  This  accumulation  of  intents  is  clumsy,  but  not  immeaning.  The 
expression  "damage  witii  intent  to  destroy  any  airway  witii  intent  to 
obstruct  a  mine  "  lias  a  meaning  slightly  narrower  than  "  damaging  an 
airway  with  intent  to  obstruct  a  mine,"  but  not  very  different  from  it. 

"  24  &  25  Vict.  c.  97,  s.  29,  W. 

^  The  words  "  sinking — mine"  are  here  repeated. 


I 


THE   CBIMiyAL    LAW  371 

erection  used  in  conducting  the  business  of  any  mine,  or  any 
bridge,  wagon-way,  or  trunk  for  conveying  minerals  from 
any  mine,  whether  any  such  ^  thing  is  completed  or  un- 
finished ;  or 

-stops,  obstructs,  or  hinders  the  working  of  any  such 
engine,  apparatus,  or  appliance  ;  or 

{d.)  %ho  wholly  or  partially  cuts  through,  severs,  breaks, 
unfastens,  or  damages  with  intent  to  destroy  or  render  use- 
less, any  rope,  chain,  or  tackle  of  whatever  material  used  in 
any  mine,  or  upon  ■*  any  way  or  work  connected  therewith  or 
employed  in  working  it ; 

(<?.)  '"  who  cuts  off,  draws  up,  or  removes  any  piles,  chalk, 
or  other  materials  fixed  in  the  ground  and  used  for  securing 
any  sea  bank  or  sea  wall,  or  the  bank,  dam,  or  wall  of  any 
other  ^  water  ;  or 

(/.)  ^  who,  with  intent  and  so  as  thereby  to  obstruct  and 
prevent  the  carrying  on  or  completing  or  maintaining  the 
navigation  of  any  navigable  river  or  canal,  opens  or  draws 
up  any  flood-gate  or  sluice,  or  does  any  injury  or  mischief  to 
such  river  or  canal ;  or 

ifj.)  "^who  cuts  through,  breaks  down,  or  otherwise  destroys 
the  dam,  flood-gate,  or  sluice  of  any  fish-pond,  or  of  any 
water  being  private  property,  or  in  which  there  is  any  private 
right  of  fishery,  with  intent  thereby  to  take  or  destroy  any  of 
the  fish  therein,  or  so  as  thereby  to  cause  the  loss  or  destruc- 
tion of  any  of  them  ;  or 

(/t.)  ^  who  puts  lime  or  any  other  noxious  mateiial  in  any 

'  The  words  "  Ijritlge — trunk  "  are  here  repeated. 

-  The  words  relating  to  the  intent  witli  which  these  acts  are  not  to  he 
done  follow  these  wonls.  I  tliink,  however,  that  they  are  meant  to  api)ly 
to  all  the  words  which  precede  them.  If  not,  the  words  as  to  intent  at 
the  l>eginning  of  tlie  clause  do  not  apply  to  the  paragraph  beginning  "  or 
pulls  flown."     The  sections  are  very  clumsy. 

■  24  &  2.J  Vict.  c.  97,  s.  '29,  W. 

■  "  Any  inclined  plane,  railway,  or  other  way  or  other  work  wliatsoever 
III  anywise  J>e!onging  or  apj>ertaining  tf>  or  connc<--ted  with  or  employed  in 
any  mine,  or  the  working  or  husiness  thereof." 

'  24  .V:  2.-)  Vict.  <•.  97,  s.  :\\,  W . 

"  "  river,  ainul,  drain,  atpieduct,  miirHh,  reservoir,  piml.  pnil,  hiirlioiir, 
■  liM-k,  «|uay,  wharf,  jetty,  or  lock." 


24  k  25  Vict.  c.  97,  s.  :il,  \V 
Ihid.  s.  :i2,  \V 


i;  I!   1 


372  A    DIGEST   OF 


such  water  [^  or  in  any  salmon  river]  with  intent  to  destroy 
any  fish  then  being  or  afterwards  to  be  put  therein  ;  or 

(i.)  who  cuts  througli,  bi'caks  down,  or  otherwise  destroys 
the  dam  or  flood-gate  of  any  mill-pond,  reservoir,  or  pool ;  or 

(y.)-Mdio  damages  with  intent  to  destroy  or  render  it 
useless,  any  ship  or  vessel,  whether  complete  or  incomplete, 
by  any  means  other  than  fire,  gunpowder,  or  other  explosive 
substance ;  or 

(k.)  ^  who  cuts  away,  casts  adrift,  removes,  alters,  defaces, 
sinks,  or  destroys  any  boat,  buoy,  buoy  rope,  perch,  or  mark 
used  or  intended  for  the  guidance  of  seamen  for  the  purpose 
of  navigation,  or  who  does  any  act  with  intent  to  do  any  of 
the  things  aforesaid,  or  who  in  any  other  manner  injures  or 
conceals  any  of  the  things  aforesaid. 

Article  423. 
malicious  mischief — five  years  penal  servitude. 

*  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  five  years  penal  servitude,  who  unlawfully  and 
maliciously 

(a.)  cuts,  breaks,  barks,  roots  up,  or  otherwise  destroys  or 
damages  the  whole  or  any  part  of  any  tree,  sapling,  shrub, 
or  any  underwood,  if  the  injury  done  exceeds  the  sum  of  £5, 
•'  or  the  sura  of  £1  if  the  thing  injured  grows  in  any  park- 
pleasure  ground,  garden,  orchard,  or  avenue,  or  in  any 
ground  adjoining  or  belonging  to  any  dwelling-house;  or 

•  Tliese  words  are  added  by  .36  &  .37  Vict.  c.  71,  s.  L3.  For  definition 
of  "  salmon  river,"  see  28  &  29  Vict.  c.  121,  s.  .3,  and  24  &  25  Vict.  c.  109, 
s.  4. 

^  24  &  25  Vict.  c.  97,  s.  46,  W. 

^  Ibid.  s.  48,  W. 

^  24  &  25  Vict.  c.  97,  ss.  21,  W.,  20,  W.  These  sections  are  thus 
arranged  in  the  Act :  (20.)  Whoever  cuts  .  .  .  trees  ...  in  any  park, 
&c.,  if  the  damage  exceeds  £1,  is  guilty  of  felony,  &c.  (21.)  Whoever 
cuts  .  .  .  trees  .  .  .  not  growing  in  any  park,  &c.,  if  the  damage  done 
exceeds  £5,  is  guilty  of  felony,  &c.  The  text  is  only  half  as  long,  and  has 
preciselj'  the  same  meaning. 

^  These  sums  are  exclusive  of  consequential  damage.     A  did  injury  to 
the  amount  of  £1  to  a  hedge  which  it  would  cost  £4  14s.  6d.  to  replace. 
This  is  injury  to  the  amount  of  £1,  not  to  the  amount  of  £5  14v.  6d. 
n.  V.  Whittman,  1854,  1).  &  P.  ,353  (upon  7  &  8  Ceo.  4,  c.  30,  s.  19). 


THE    CRIMINAL    LAW  373 

(h.)  ^  cuts  or  injures  any  electric  line  or  work  with  intent 
to  cut  off  any  supply  of  electricity. 

Article  424. 

making  and  possessing  gunpowder  for  certain  purposes. 

-  Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  two  years  imprisonment  with  hard 
labour,  who  knowingly  has  in  his  possession,  or  makes  or 
manufactures  any  gunpowder,  explosive  substance,  dangerous 
or  noxious  thing,  machine,  engine,  instrument,  or  thing  with 
intent  thereby  or  by  means  thereof  to  commit,  or  for  the 
purpose  of  enabling  any  other  person  to  commit,  any  felony 
mentioned  in  the  24  &  25  Vict.  c.  100,  or  the  24  &  25 
Vict.  c.  97. 

Article  425. 

sundry  malicious  injuries  to  property.  ^ 

Every  one  who  unlawfully  and  maliciously  does  any  of 
the  following  acts  is  liable  to  the  following  punishments 
respectively,  that  is  to  say, 

(rt.)  *  who,  being  possessed  of  any  '-'  building  or  part  of  any 
building  as  tenant  for  a  term,  at  will,  or  on  sufferance,  or 

1  45  &  4G  Vict.  c.  56,  s.  22.  "  Electric  line"  is  defined  by  sect.  32  to 
mean  "a  wire  or  wires  conductor  or  other  means  ii.sed  for  the  purpose  of 
convejing,  transmitting,  or  distributing  electricitj-  with  any  casing,  coat- 
ing, covering,  tube,  pipe,  or  insulator  inclosing,  suirounding,  or  support- 
ing the  same  or  any  part  thereof,  or  an}'  apparatus  connected  therewith 
for  the  purjKjse  of  conveying,  transmitting,  or  distributing  electricity  or 
elect!ic  currents." 

" '  Works'  means  and  includes  electric  lines,  also  any  buildings,  macliinery, 
engines,  works,  matters,  or  things  of  whatever  descrii>tion  required  to 
supply  electricity  an<l  to  caiiy  into  ellect  the  object  of  tlic  undertakers 
under  tliis  Act." 

2  24  &  25  Vict.  c.  100,  s.  04,  W.  ;  24  &  25  Vict.  (;.  07,  s.  54,  W.  The 
felonies  in  question  are  those  si>ecified  in  this  (•iiaj)tci-,  ami  in  i'|ia|)ters 
xxiv.-  xxix.,  iKjtli  inclusive,  and  in  Ailifdes  70  and  ISU. 

^  For  the  puniKhnient  of  Kimilar  oH'cnces  sunimaiily,  see  ()kc"s  Synopsis, 
pp.  420-424.  Where  offences  in  this  Article  are  punislial<le  after  a 
previous  conviction  or  previous  convictions,  the  first,  or  the  first  and 
Mocond  offenceH  are   punisliable  suiiiniarily. 

*  24  k  25  Vict.  c.  97,  h.  1."}. 

'  "any  <lwelling-lioU8e  or  other  building,  or  part  of  any  tlweliiiig-houso 
or  oth»r  ))uilding." 


."»74  A    DIGEST    OF 


hold  over  after  the  termination  of  any  tenancy,  pulls  down 
or  demolishes,  or  begins  to  pull  down  or  demolish  the  same 
or  any  part  thereof,  or  pulls  down  or  severs  from  the  freehold 
any  fixture  being  fixed  in  or  to,  or  being  part  of  such 
building,  is  punishable  as  for  a  misdemeanour  at  common 
law ; 

(/).)  ^  who  cuts,  breaks,  barks,  roots  up,  or  otherwise  destroys 
or  damages  the  whole  or  part  of  any  tree,  sapling,  or  shrub, 
or  any  underwood  wheresoever  growing,  to  the  amount  of 
one  shilling  at  the  least,  after  two  convictions  of  any  such 
offence  is  guilty  of  misdemeanour  and  liable  to  two  years 
imprisonment  with  hard  labour  ; 

(c.)  ^  who  destroys  or  damages  with  intent  to  destroy  any 
plant,  root,  fruit,  or  vegetable  production  growing  in  any 
garden,  orchard,  nursery  ground,  hothouse,  greenhouse,  or 
conservatory,  after  one  conviction  of  any  such  offence  is 
guilty  of  felony  and  liable  to  five  years  penal  servitude ; 

{d).  ^  who  throws  down,  levels,  or  otherwise  destroys  in 
whole  or  in  part  any  turnpike  gate  or  toll-bar,  or  *  fence 
belonging  to  any  turnpike  or  toll-bar,  so  set  up  or  erected 
to  prevent  passengers  from  passing  by  without  payment  of 
any  toll  directed  to  be  paid  by  any  Act  of  Parliament,  or  any 
house,  building,  or  weighing  engine  erected  for  the  better 
collection,  ascertainment,  or  security  of  any  such  toll,  is 
guilty  of  a  misdemeanour; 

(e.)  ^who  cuts,  breaks,  throws  down,  destroys,  injures,  or 
removes  anything  whatever  ^  being  part  of  or  used  in  or 
about  any  electric  or  magnetic  telegraph,  or  in  the  working 
thereof,  or  prevents  or  obstructs  in  any  manner  whatever  the 
sending,  conveyance,  or  delivery  of  any  communication  by 
any  such  telegraph,  is  guilty  of  a  misdemeanour  and  liable  to 
imprisonment  with  hard  labour  for  two  years  ; 

1  24  &  25  Vict.  c.  97,  s.  22,  W. 

'^  Ibid.  s.  23,  W. 

■•  Ibitl.  s.  34. 

*  "  any  wall,  chain,  rail,  post,  bar,  or  other  fence." 

•'"  24  &  2.')  Vict.  c.  97,  s.  37.  The  committing  magistrate  may  deal 
summarily  with  this  offence. 

^  "  any  battery,  machinery,  wire,  cable,  post,  or  other  matter  or  thing 
whatsoever." 


1 


THE   CRIMINAL    LAW  375 

(/)  ^  who  destroys  or  damages  any  book,  manuscript, 
-  work  of  art,  or  thing  kept  for  the  purposes  of  art,  science, 
or  literature,  or  as  an  object  of  curiosity  in  any  -'repository 
open  at  all  times  or  from  time  to  time  for  the  admission 
of  the  public,  or  to  any  considerable  number  of  persons, 
whether  by  the  permission  of  the  proprietor,  or  by  the  pay- 
ment of  money ;  or 

any  picture,  statue,  monument,  or  other  memorial  of  the 
dead,  painted  glass,  or  other  ornament  or  work  of  art  in 
any  *  place  of  divine  worship  or  ^  public  building,  or  ^  public 
place,  churchyard,  or  burial  ground ;  or 

any  statue  or  monument  exposed  to  public  view,  or  any 
ornament,  railing,  or  fence  surrounding  such  statue  or  monu- 
ment, is  guilty  of  misdemeanour  and  is  liable  to  imprisonment 
%nth  hard  labour  for  six  months  ; 

(/;.)  "  who  by  any  unlawful  act,  or  by  any  wilful  omission 
or  neglect,  obstructs  or  causes  to  be  obstructed  any  engine 
or  carriage  using  any  railway,  or  aids  therein,  is  guilty  of  a 
misdemeanour  and  liable  to  imprisonment  with  hard  labour 
for  two  years ; 

(A.)  ^  who  unlawfully  and  maliciously  commits  any  damage, 
injury,  or  spoil  to  an  amount  exceeding  £5,  to  or  upon  any 
real  or  personal  property  whatsoever,  either  of  a  public  or 
private  nature,  for  which  no  punishment  is  otherwise  pro- 
vided in  this  chapter,  is  guilty  of  a  misdemeanour  and  liable 
to  imprisonment  with  hard  labour  for  two  years,  and  if  the 
offence  is  committed  between  9  p.m.  and  6  a.m.,  to  five  years 
[jenal  servitude. 

'  24  &  2.5  Vict.  e.  97,  s.  W.),  W. 

^  Wijik  of  art  =  "  picture,  print,  statue,  bust,  vase,  oi'  any  otliur 
article  or  thing  kejjt  for  tlie  purposes  of  art." 

•'  "Museum,  gallery,  cabinet,  lilirary,  or  otlier  depository."' 

*  See  the  ilefinition  of  tiiese  words  in  n<ite  4,  p.  :i(J4. 

'•>  See  the  definition  of  these  words  in  note  .'),  j).  'M\'y,  from  "  biionging 
to  llie  King  "  to  "  Inn  of  Court." 

"  I'ublii:  j»la<;e  =    street,  scjuare,  publi(;  garden,  or  ground. 

^  24  k.  '2')  Vict.  c.  97,  s.  36.  Ciianging  a  signal  so  as  to  cause  a  train 
to  go  slower  tlian  it  otherwise  wouM  is  an  obstructing  :  N.  v.  Jladjitlil^ 
IH70,  1  C.  ('.  K.  25.'{  ;  ho  is  stretching  rmt  tin;  arms  as  a  signal  :  II.  v. 
Ilnrily,  1871,  I  (-'.  C.  K.  27H.  \  railway  not  opened  for  piil.iir  tnillic 
mav  1m;  obstructed  :    /(*.   v.    linullonl,    I  SOU,   IJcli,  C  ( '.   2li9. 

•■    Ibid.    .H.    .Tl. 


376  A    DIGEST   OF 


CHAPTER  XLIX 

^OFFEXGE!^  RELATING  TO  GAME,  WILD  ANIMAL!^,  ANT) 

FISH 

Article  426. 
"nigtit"  and  "game"  defined. 

In  this  chapter  the  following  words  arc  used  in  the  follow- 
ing senses : — 

-"  Night"  means  the  interval  between  the  end  of  the  first 
hour  after  sunset  and  the  beginning  of  the  last  hour  before 
sunrise. 

^  "  Game  "  means  hares,  pheasants,  partridges,  grouse,  heath 
or  moor  game,  black  game,  and  bustards. 

For  the  offence  of  going  to  the  number  of  three,  armed, 
by  niglit,  in  pursuit  of  game,  vide  ante,  Art.  82,  p.  60. 

Article  427. 
night  poaching  and  assaulting  keeper. 

Every  one  commits  a  misdemeanour  who  does  either  of  the 
following  things,  and  is  liable  to  the  following  punishments 
respectively,  that  is  to  say, 

{a.)  ■*  who  by  night  unlawfully  takes  or  destroj's  any 
game  or  rabbits  in  any  land,  whether  open  or  inclosed,  or  by 
night  unlawfully  enters  or  is  in  any  land,  whether  open  or 
inclosed,  with  any  gun,  net,  engine,  or  other  instrument  for 
the  purpose  of  taking  or  destroying  game,  after  twice  so 
offending  is  guilty  of  a  misdemeanour  and  liable  to  serve  seven 
years  penal  servitude ; 

{h.)  -'  who  assaults  or  offers  any   violence  with   any  gun, 

J  3  Hist.  Cr.  Law,  275-282. 

2  9  Geo.  4,  c.  69,  s.  12  ;  24  &  25  Vict.  c.  90,  ss.  17,  24. 

3  Ibid.  s.  13. 

•*  Ibid.  s.  1  ;  see  Oke's  Synopsis,  p.  322,  for  tlie  suiiuiiary  puiiislmieiit 
foi-  the  first  two  offences. 
^  Ibid.  s.  2. 


THE    CRIMIXAL    LAW  377 

cross-bow,  fire-arms,  bludgeon,  stick,  club,  or  any  other 
offensive  weapon  whatever,  towards  any  ^  person  authorised 
to  seize  and  apprehend  him  for  the  offence  specified  in 
clause  (a.),  is  guilty  of  a  misdemeanour  and  is  liable  to  seven 
years  penal  servitude. 

Article  428. 
offences  relating  to  deer,  hares,  and  rabbits. 

-  Every  one  is  guilty  of  an  offence  who  does  any  of  the 
following  things,  and  is  liable  to  the  following  punishments 
respectively,  that  is  to  sa}', 

{a.)  ^  who  unlawfully  and  wilfully  courses,  hunts,  snares,  or 
carries  away,  kills,  wounds,  or  attempts  to  kill  or  wound  any 
deer  kept  or  being 

(i.)  in  the  uninclosed  part  of  any  forest,  chase,  or  purlieu, 
after  a  *  previous  conviction  of  any  offence  relating  to  deer  for 
which  a  pecuniary  penalt}^  is  imposed  by  any  Act  of  Parlia- 
ment, is  guilty  of  a  felony  and  liable  to  imprisonment  with 
hard  labour  for  two  years  ; 

(ii.)  ^  in  the  inclosed  part  of  any  forest,  chase,  or  purlieu, 
or  in  any  inclosed  land  where  deer  are  usually  kept,  is  guilty  of 
felony  and  liable  to  imprisonment  with  hard  labour  for  two 
years  ; 

{h.)  ^  who,  having  entered  into  any  forest,  chase,  or  pur- 
lieu, inclo-sed  or  not,  or  into  any  inclosed  land  where  deer 
are  usually  kept,  with  intent  unlawfully  to  hunt,  course, 
wound,  kill,  snare,  or  carry  away  any  deer,  unlawfully  beats 
or  wounds  any  person  entrusted  with  the  care  t)f  the  deer,  or 

•  t.ft.  "the  owner  or  oceujiier  of  sucli  laiiil  [i.a.  land  mentioned  in  (a.)) 
or  .  .  .  any  person  having  a  riglit  or  reputed  right  of  fiee  warren  or  free 
eliaNC  thereon,  or  .  .  .  tiie  lord  of  the  manor  or  reputed  manor  wherein 
Hueh  land  may  he  wituate,  and  also  .  .  .  anj'  gamekeeper  or  Horvant  of  any 
of  the  i>erHonH  iierein  mentioned,  or  any  persons  assisting  sucli  gamekeeper 
or  servant,"  sect.  2. 

-'  For  other  offenees  connected  with  steuling  deer  and  puMislial)lf  sum- 
marily, see  Uke's  Synopsis,  pp.  404   40(5. 

-  Ia,  k  2')  Vict.  e.  9(5,  s.   12,  W. 

*  'I'hc  first  od'ence  is  punishalde  summarilv  ;  sei-  Oke's  Synopsis,  p.  4(1 1. 
<■•  24  fc  2r,  Vict.  c.  U(5,  s.   Hi,  W. 

'■■   Il.id.  H.  1(5,  W. 


378  A    DIGEST   OF 


any  of  his  assistants,  in  the  execution  of  the  powers  here- 
under mentioned,  ^  is  guilty  of  felony  and  liable  to  imprison- 
ment with  hard  labour  for  two  years  ; 

(c.)  -  who  by  night  unlawfully  and  wilfully  takes  or  kills 
any  hare  or  rabbit  in  any  warren  or  ground  lawfully  used  for 
the  breeding  or  keeping  of  hares  or  rabbits,  whether  the  same 
be  inclosed  or  not,  is  guilty  of  a  misdemeanour ; 

(d.)  ^  who  unlawfully  and  wilfully  takes  or  destroys,  or 
attempts  to  take  or  destroy,  any  fish,  otherwise  than  by 
angling  in  the  day-time,  in  any  water  running  through  or 
being  in  any  land  adjoining  or  belonging  to  the  dwelling- 
house  of  any  person  being  the  owner  of  such  water,  or  having 
a  right  of  fishery  therein,  is  guilty  of  a  misdemeanour. 

^  If  an}'  person  is  found  committing  any  offence  under 
(d.),  the  owner  of  the  ground,  water,  or  fishery  where  such 
offender  is  found,  his  servant,  or  any  person  authorised  by 
him,  may  demand  from  such  offender  any  rod,  line,  hook,  net, 
or  other  implement  for  taking  or  destroying  fish  then  in  such 
offender's  possession,  and  if  such  offender  does  not  immedi- 
ately deliver  up  the  same,  may  seize  and  take  it  from  him 
for  the  use  of  such  owner.  Any  person  angling  by  day  is  b}' 
such  taking  or  delivery  exempted  from  any  further  damage 
or  penalty. 

1  "  Every  person  entrusted  with  the  care  of  sucli  deer,  and  anj-  of  his 
assistants,  whether  in  his  presence  or  not,  may  demand  from  every  such 
offender  any  gun,  fire-arms,  snare,  or  engine  in  his  possession,  and  any 
dog  tliere  brought  for  hunting,  coursing,  or  killing  deer  ;  and  in  case  such 
offender  shall  not  immediately'  deliver  up  the  same,  may  seize  and  take 
the  same  from  him  in  anj^  of  those  respective  places,  or,  upon  pursuit 
made,  in  any  other  place  to  wliich  he  may  have  escaped  therefrom,  for  the 
use  of  the  owner  of  the  deer."' 

-  24  &  25  Vict.  c.  96,  s.  17  ;  this  ofl'ence  when  coiimiitted  hy  day,  and 
setting  snares,  &c. ,  in  a  warren,  are  piuiishaljle  summarily  :  i-ee  Oke's 
Synopsis,  p.  .SI 6. 

■'  Il)id.  s.  24  ;  other  offences  consisting  of  unlawfidly  taking  lisli  arc 
])uiiisliahle  summarily  ;  see  Oke's  Synopsis,  j).  4US. 

■»  Ibid.  s.  25. 


THE   CRIMINAL    LAW  379 


CHAPTER  L 

»  OFFENCES   CONXECTED   WITH   TRADE  AND   BREACH  OF 
CONTRACT 

Article  429. 

absconding  with  property  in  contemplation  of  bank- 
RUPTCY. 

-  Every  one  commits  felony,  and  is  liable  upon  conviction 
thereof  to  two  years  imprisonment  with  hard  labour,  who 
quits  England  and  takes  with  him,  or  attempts  or  makes 
preparation  for  quitting  England  and  for  taking  with  him, 
any  part  of  his  property  to  the  amount  of  £20  or  upwards, 
which  ought  by  law  to  be  divided  amongst  his  creditors,-^ 
having  been  adjudged  a  bankrupt,  or  having  had  his  affairs 
liquidated  by  arrangement  after  the  presentation  of  a  bank- 
ruptcy petition  [^  by  or]  against  him,  or  the  commencement 
of  his  liquidation,  or  within  four  months  before  such  present- 
ation or  commencement,  unless  the  jury  is  satisfied  that  he 
had  no  intent  to  defraud. 

"^  Article  480. 

punishment  of  fraudulent  debtors. 

Every  person  adjudged  bankru})t,  and  every  person  whose 
affairs   are  liquidated  by  arrangement  in  pursuance  of  the 

'  .S  Hist.  Cr.  Law,  228-233.  A  few  obsolete  Statutes  such  as  2S  (Jeo.  3, 
c.  ')'i,  as  to  unlawful  dealings  with  stocking-frames  are  omitted  from  tiiis 
chapter. 

■^  32  &  33  Vict.  c.  02,  s.  12. 

'  In  the  wise  of  an  infant  adjudged  a  h.inkrupl  for  trading  di.l)ts  wiio 
was  convicted  inider  this  section,  it  was  lield  tliat  tiie  conviction  must  he 
set  aside,  as  since  37  &  38  Vict.  c.  n2  the  infant  could  have  no  cieilitors 
capable  of  being  defrauded  :    R.  v.    Wilson,  187!»,  o  g.  15.   1).  28. 

1  46  &  47  Vict.  c.  .j2,  8.  103  (1). 

'•  32  &  33  Vict.  c.  02,  s.  11.  These  provisions  ai)pl3'  "to  any  person 
whether  a  trailer  or  not  in  respect  to  wiiose  estate  a  receiving  order  has 
Im^cii  made,  as  if  the  term  '  Ijankiupt '  in  that  Act  [/.'.  32  i"k  33  Viit.  c.  02] 
included  a  person  in  respect  <»f  whose  estutc  a  receiving  ortler  has  been 
mad.-':  40  k  47  Virt.  c.  .",2,  h.   \iV.\    2'. 


380  A    DIGEST   OF 


Bankruptcy  Act  1869/  commits  a  misdemeanour,  and  is  liable 
upon  conviction  thereof  to  a  punishment  of  two  years  im- 
prisonment and  hard  labour, 

(1.)  If  he  docs  not,  to  the  best  of  his  knowledge  and  belief, 
fully  and  truly  discover  to  the  trustee  administering  his 
estate  for  the  benefit  of  his  creditors  all  his  property,  real 
and  personal,  and  how,  and  to  whom,  and  for  what  considera- 
tion, and  when  he  disposed  of  any  part  thereof,  except  such 
part  as  has  been  disposed  of  in  the  ordinary  way  of  his  trade 
(if  any),  or  laid  out  in  the  ordinary  expense  of  his  family, 
unless  the  jury  is  satisfied  that  he  had  no  intent  to  defraud  : 

(2.)  If  he  does  not  deliver  up  to  such  trustee,  or  as  he 
directs,  all  such  part  of  his  real  and  personal  property  as  is 
in  his  custody  or  under  his  control,  and  which  he  is  required 
by  law  to  deliver  up,  unless  the  jury  is  satisfied  that  he  had 
no  intent  to  defraud  : 

(3.)  If  he  does  not  deliver  up  to  such  trustee,  or  as  he 
directs,  all  books,  documents,  papers,  and  writings  in  his 
custody  or  under  his  control,  relating  to  his  property  or 
affairs,  unless  the  jury  is  satisfied  that  he  had  no  intent  to 
defraud : 

(4.)  If  after  the  presentation  of  a  bankruptcy  petition 
["  by  or]  against  him,  or  the  commencement  of  the  ^  liquida- 
tion, or  within  four  months  next  before  such  presentation  or 
commencement,  he  conceals  any  part  of  his  property  to  the 
value  of  £10  or  upwards,  or  conceals  any  debt  due  to  or  from 
him,  unless  the  jury  is  satisfied  that  he  had  no  intent  to 
defraud : 

(5.)  If  after  the  presentation  of  a  bankruptcy  petition  P  by 
or]  against  him,  or  the  commencement  of  the  ^  liquidation, 

1  The  Bankruptcy  Act  of  1869  being  repealed,  the  above  is  to  be  con- 
strued "  as  if  reference  were  made  therein  to  the  corresponding  provisions  " 
of  the  Act  of  1883,  46  &  47  Vict.  c.  52,  s.  149  (2).  What  are  the  pro- 
visions of  the  latter  Act  which  correspond  to  liquidation  by  arrangement 
under  the  Act  of  1869  ?  It  miglit  be  argued  that  they  are  those  referring 
to  compositions  and  schemes  of  arrangement  (see  53  &  54  Vict.  c.  71,  s.  3  ; 
50  &  51  Vict.  c.  57,  &c.) ;  but  the  decision  in  In  reBurdon,  Ex  parte  Wood, 
1888,  57  L.  J.  Q.  B.  570,  seems  to  decide  to  tlae  contrary  effect. 

2  46  &  47  Vict.  c.  52,  s.  103  (i.). 
^  See  note  1,  supra. 


THE   CRIMINAL    LAW  381 

or  within  four  months  next  before  such  presentation  or 
commencement,  he  fraudulently  removes  any  part  of  his 
property  of  the  value  of  £10  or  upwards : 

(6.)  If  he  makes  any  material  omission  in  any  statement 
relating  to  his  affairs,  unless  the  j  ury  is  satisfied  that  he  had 
no  intent  to  defraud  : 

(7.)  If,  knowing  or  believing  that  a  false  debt  has  been 
proved  by  any  person  under  the  bankruptcy  or  ^  liquidation, 
he  fail  for  the  period  of  a  month  to  inform  such  trustee  as 
aforesaid  thereof: 

(8.)  If  after  the  presentation  of  a  bankruptcy  petition 
["- by  or]  against  him,  or  the  commencement  of  the  ^liqui- 
dation, he  prevents  the  production  of  any  book,  document, 
paper,  or  writing  affecting  or  relating  to  his  property  or 
affairs,  unless  the  jury  is  satisfied  that  he  had  no  intent  to 
conceal  the  state  of  his  affairs  or  to  defeat  the  law : 

(9.)  If  after  the  presentation  of  a  bankruptcy  petition 
[■-  by  or]  against  him,  or  the  commencement  of  the  ^  liqui- 
dation, or  within  four  months  next  before  such  presentation 
or  commencement,  he  conceals,  destroys,  mutilates,  or  falsifies, 
or  is  privy  to  the  concealment,  destruction,  mutilation,  or 
falsification  of  any  book  or  document  affecting  or  relating  to 
his  property  or  affairs,  unless  the  jury  is  satisfied  that  he  had 
no  intention  to  conceal  the  state  of  his  afQxirs  or  to  defeat 
the  law  : 

(10.)  If  after  the  presentation  of  a  bankruptcy  petition 
[-by  or]  against  him,  or  the  commencement  of  the  ^liquida- 
tion, or  within  four  months  next  before  such  presentation  or 
commencement,  he  makes  or  is  privy  to  the  making  of  any 
false  entry  in  any  book  or  docuinciit  affecting  or  relating  to 
his  property  or  affairs,  unless  the  jury  is  satisfied  that  he  had 
no  intent  to  conceal  the  state  of  his  affairs  or  to  defeat  the 
law. 

(11.)  If  aft(;r  the  presentation  of  a  bankruptcy  petition 
[-by  or]  against  him,  or  the;  commencement  of  the  '  liipii- 
•  latiou,  or  within  loiii'  niDUths  next  before  such  presciilatiou 

'  Sec  note  1,  ante,  p.  380. 

^  40  &  47  Viet.  c.  5-2,  h.  163  (i.). 


382  A    DIGEST   OF 


or  commencement,  he  fraudulently  parts  with,  alters,  or 
makes  any  omission,  or  is  privy  to  the  fraudulently  ])ai-ting 
with,  altering,  or  making  any  omission  in  any  document 
affecting  or  relating  to  his  property  or  affairs : 

(12.)  ^If  after  the  presentation  of  a  bankruptcy  petition 
[-by  or]  against  him,  or  the  commencement  of  the  'niqui- 
dation,  or  at  any  meeting  of  his  creditors  within  four  months 
next  before  such  presentation  or  commencement,  he  attempts 
to  account  for  any  part  of  his  property  by  fictitious  losses  or 
expenses  : 

(13.)  [^  If  within  four  months  next  before  the  presentation 
of  a  bankruptcy  petition  by  or  against  him,  or  in  case  of  a 
receiving  order  made  under  section  103  of  the  Bankruptcy 
Act  1883,  before  the  date  of  the  order]  or  the  commencement 
of  the  ^  liquidation,  he,  by  any  false  representation  or  other 
fraud,  has  obtained  any  property  on  credit,  and  has  not  paid 
for  the  same : 

(14.)  p  If  within  four  months  next  before  the  presentation 
of  a  bankruptcy  petition  by  or  against  him,  or  in  case  of  a 
receiving  order  made  under  section  103  of  the  Bankruptcy 
Act  1883,  before  the  date  of  the  order]  or  the  commencement 
of  the  ^liquidation,  he,  being  a  trader,  obtains,  under  the  false 
pretence  of  carrying  on  business  and  dealing  in  the  ordinary 
way  in  his  trade,  any  property  on  credit,  and  has  not  paid 
for  the  same,  unless  the  jury  is  satisfied  that  he  had  no 
intent  to  defraud  : 

(15.)  ['^If  within  four  months  next  before  the  jDresentation 
of  a  bankruptcy  petition  by  or  against  him,  or  in  case  of  a 
receiving  order  made  under  section  103  of  the  Bankruptcy 
Act  1883,  before  the  date  of  the  order]  or  the  commencement 
of  the  ^  liquidation,  he,  being  a  trader,  pawns,  pledges,  or  dis- 
poses of,  otherwise  than  in  the  ordinary  way  of  his  trade,  any 
property  which  he  has  obtained  on  credit  and  has  not  paid 


1  See  Ex  parte  Brett,  1875,  1  Ch.  D.  151. 
-  46  &  47  Vict.  c.  52,  s.  163  (i.). 

3  See  note  1,  ante,  p.  380. 

4  53  &  54  Vict.  c.  71,  s.  26. 

^  53  &  54  Vict.  c.  71,  s.  26   and  see  Ex  2)arle  Brelt^  siq^ra. 


THE    CRIMINAL    LAW  383 

for,    unless    the    jury  is  satisfied  that  he  had  no  intent  to 
defraud  : 

(16.)  If  he  is  guilty  of  any  false  representation  or  other 
fraud  for  the  purpose  of  obtaining  the  consent  of  his  credi- 
tors or  any  of  them  to  any  agreement  with  reference  to  his 
affairs,  or  his  bankruptcy  or  ^  liquidation. 

Article  431. 

undischarged  baxkrupt  obtaining  credit. 

2  Where  an  undischarged  bankrupt  who  has  been  adjudged 
bankrupt  under  the  Bankruptcy  Act  1883  obtains  credit  to 
the  extent  of  £20  or  upwards  from  any  person  without 
informing  such  person  that  ho  is  an  undischarged  bankrupt, 
lie  commits  a  misdemeanour  -^  punishable  with  one  year's 
hard  labour. 

Article  432. 

false  claim  on  bankrupt's  estate. 

■*  Every  one  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  one  year's  imprisonment  and  hard 
labour, 

who,  being  a  creditor  in  any  bankruptcy  or  ^  liquidation  by 
an-angement  or  composition  with  creditors  in  pursuance  of 
the  Bankruptcy  Acts  1883  and  1890,  wilfully  and  with 
intent  to  defraud  makes  any  false  claim,  or  any  proof, 
declaration,  or  statement  of  account  which  is  untrue  in  any 
material  particular. 

Article  433. 
offences  bv  masters  and  owxehs  of  ships. 
^  Every  master  or  owner  of  ;i  shij)    is    guilt\'    of  ;i    niis- 

'  See  note  1,  p.  3S(». 

-  40  k  47  Vict.  c.  "ili,  h.  :H.  TImh  HCttioii  fip[)lies  to  cuhgh  wlicro  credit  is 
ill  fad  olitaiiieil  tlioiigli  no  definite  .sti|)iiliitioii  in  iiuide  for  it :  11.  v.  Peters 

Hi  Q.  l{.  D.  «:«;. 

■'  //.  V.  V'f////r,- [1904],  I  K.  I'.,   isl. 
*  H2&  Xi  Viet,  c,  62,  H.   14. 
'•  Tu  k  r,S  Viet,  e,  GO,  h.  (}80. 


884  A    DIGEST   OF 


demeanour,  and  is  liable  to  fine  or  imprisonment  with  hard 
labour  for  two  years,  and  in  (1)  the  ship  is  liable  to  forfeiture, 
who 

(1)  Uiscs  or  attempts  to  use  for  her  navigation  a  cer- 
tificate of  registry  not  legally  granted  in  respect  of  the  ship  ; 
or 

(2)  -is  guilty  of  a  wilful  default  which  causes  an  infringe- 
ment of  the  collision  regulations  of  the  Merchant  Shipping 
Act  1894 ;  or 

(3)  ^is  party  or  privy  to  the  obstruction  of  the  service  on 
the  master  of  any  ship  of  any  document  under  the  provisions 
of  the  Merchant  Shipping  Act  1894  relating  to  the  detention 
of  the  ship  as  unseaworthy. 


Article  434. 

offences  by  the  masters  of  british  ships. 

*  Every  master  of,  and  in  (2)  every  person  belonging  to,  a 
British  ship  is  guilty  of  a  misdemeanour,  and  is  liable  to  fine 
or  imprisonment  with  hard  labour  for  two  years,  who 

(1)  ^does  anything,  or  permits  anything  to  be  done,  or 
carries  or  permits  to  be  carried  any  papers  or  documents, 
with  intent  to  conceal  the  British  character  of  the  ship  from 
any  person  entitled  by  British  law  to  inquire  into  the  same, 
or  with  intent  to  assume  a  foreign  character,  or  with  intent 
to  deceive  any  person  so  entitled  as  aforesaid,  or  is  privy  to 
the  commission  of  such  an  offence  ;  or 

(2)  "^wrongfully  forces  on  shore  and  leaves  behind,  or 
otherwise  Avilfully  and  wrongfully  leaves  behind,  in  any  place 
on  shore  or  at  sea,  in  or  out  of  His  Majesty's  dominions,  a 
seaman  or  apprentice  to  the  sea  service,  before  the  comple- 
tion of  the  voyage  for  which  he  was  engaged  or  before  the 
return  of  the  ship  to  the  United  Kingdom  :  or 

'  57  &  58  Vict.  c.  60,  s.  Hi.  '^  Ibid.  s.  419. 

3  Ibid.  s.  696  (2\  '  Ibid.  s.  680. 

5  Ibid.  s.  70.       '  "  Ibid.  s.  187. 


THE    CRIMINAL    LAW  385 

(3)  ^  discharges  a  seaman  or  apprentice  to  the  sea  service 
abroad,  or  leaves  him  behind  abroad,  ashore,  or  at  sea,  unless 
he  previously  obtains  indorsed  on  the  agreement  with  the 
crew  the  sanction,  or,  in  the  case  of  leaving  behind,  the 
certificate,  of  a  superintendent  in  a  British  possession,  or  of 
a  consular  officer  elsewhere  ;  or  * 

(4)  -knowingly  takes  the  ship  to  sea  in  such  an  un- 
seaworthy  state  that  the  life  of  any  person  is  likely  to  be 
thereby  endangered,  unless  he  proves  that  her  going  to  sea 
in  such  an  unseaworthy  state  was  under  the  circumstances 
reasonable  and  justifiable. 

Article  435. 
neglect  of  duty  in  case  of  collision. 

^  Every  master  of  or  person  in  charge  of  a  vessel  is  guilty 
of  a  misdemeanour,  and  is  liable  to  fine  or  imprisonment  with 
hard  labour  for  two  years,  who  in  case  of  collision  with 
another  vessel  fails,  without  reasonable  cause, 

(a.)  to  render  to  the  other  vessel,  her  master,  crew,  and 
passengers  (if  any),  such  assistance  as  may  be  practicable,  and 
may  be  necessary,  to  save  them  from  any  danger  caused  by 
the  collision,  and  to  stay  by  the  other  vessel  until  he  has 
ascertained  that  she  has  no  further  need  of  assistance,  and 
also 

{h.)  to  give  the  master  or  person  in  charge  of  the  other 
vessel  the  name  of  his  own  vessel  and  of  the  port  to  which 
she  belongs,  and  also  the  names  of  the  ports  from  which  she 
comes  and  to  which  she  is  bound, 

if  and  in  so  far  as  he  can  do  so  without  danger  to  his  own 
vessel,  crew,  and  passengers  (if  any). 

If  he  fails  to  comply  with  this  Article,  and  no  rea.sonable 
cause  for  such  failure  is  shown,  the  collision,  in  the  absence  of 
jiroof  to  the  contrary,  is  deemed  to  have  been  caused  by  his 
wrongful  act,  nfgloct,  or  default. 

'  rr,  k  .IS  Vict.  <;.  «(»,  B.  18S. 

2  Il.i.l.  H.  4.-)7  (2). 
^  Ihi.I.  8H.  422,  680. 

C  C 


386  A    DIGEST   OF 


Article  436. 

offences  by  pilots. 

'^  Every  pilot  is  guilty  of  a  misdemeanour,  and  is  liable  to 
fine  or  imprisonment  with  hard  labour  for  two  years,  who, 
when  in  charge  of  a  ship,  by  wilful  breach  of  duty,  or  by 
neglect  of  duty,  or  by  reason  of  drunkenness, 

(«.)  does  any  act  tending  to  the  immediate  loss,  destruction, 
or  serious  damage  of  the  ship,  or  tending  immediately  to 
endanger  the  life  or  limb  of  any  person  on  board  the  ship ; 
or 

(b.)  refuses  or  omits  to  do  any  lawful  act  proper  and  requisite 
to  be  done  by  him  for  preserving  the  ship  from  loss,  destruc- 
tion, or  serious  damage,  or  for  preserving  any  person  belong- 
ing to  or  on  board  the  ship  from  danger  to  life  and 
limb. 


Article  437. 
sending  unseaworthy  ships  to  sea. 

^  Every  person  is  guilty  of  a  misdemeanour,  and  is  liable 
to  fine  or  imprisonment  with  hard  labour  for  two  years, 
who 

(1.)  ^  sends  or  attempts  to  send,  or  is  party  to  sending  or 
attempting  to  send,  a  British  ship  to  sea  in  such  an  unsea- 
worthy  state  that  the  life  of  any  person  is  likely  to  be  thereby 
endangered, 

unless  he  proves  either  that  he  used  all  reasonable  means 
to  ensure  her  being  sent  to  sea  in  a  seaworthy  state,  or  that 
her  going  to  sea  in  such  an  unseaworthy  state  was  under  the 
circumstances  reasonable  and  justifiable. 

1  57  &  58  Vict.  c.  GO,  ss.  607,  680. 

2  Ibid.  s.  680. 

3  Ibid.  s.  457  (1). 


THE    CRIMINAL    LAW  387 


Article  438.^ 

forging  false  declarations,  etc.,  under  the  merchant 
shipping  act. 

The  following  persons  are  guilty  of  felony,  and  in  (2.)  liable 
to  penal  servitude  for  seven  years,  that  is  to  say — 

(1.)  -every  one  who  forges  or  fraudulently  alters,  or  assists 
in  forging  or  fraudulently  altering,  or  procures  to  be  forged 
or  fraudulently  altered,  any  register  book,  builder's  or  sur- 
veyor's certificate,  certificate  of  registry,  declaration,  bill  of 
sale,  instrument  of  mortgage  or  certificate  of  mortgage  or 
sale  under  Part  I.  of  the  Merchant  Shipping  Act  1894,  or 
any  entry  or  indorsement  required  by  the  said  Part  to  be 
made  in  or  on  any  of  those  documents ;  or 

(2.)  -  forges  the  seal,  stamp,  or  signature  of  any  docu- 
ment declared  by  the  Merchant  Shipping  Act  1894  to  be 
admissible  in  evidence,  or  knowingly  tenders  in  evidence  any 
such  document  with  a  false  or  counterfeit  seal,  stamp,  or 
signature  thereto. 

^  Any  person  is  liable  to  five  years  penal  servitude  who,  for 
the  puqjose  of  obtaining  for  himself  or  another  any  property 
of  a  deceased  seaman  or  apprentice  to  the  sea  service,  forges, 
or  makes  use  of  when  forged,  any  document  purporting  to 
show  a  right  thereto,  or  knowingly  gives  any  false  evidence 
or  makes  any  false  representation,  or  assists  in  so  giving  or 
making  such  evidence  or  representation. 

■*Thi'  following  persons  are  guilty  of  a  misdcmoaiiour,  and 
are  liable  to  fine  or  imprisonment  with  hard  labour  (except 
as  to  hard  labour  in  (G.)  )  for  two  years,  that  is  to  say,  any 
person  who, 

(1.)  ''in  the  case  of  any  declaration  made  in  the  j)i-esence 
of,  or  produced  to,  a  registrar  under  Part  I.  of  the  Mcicliant 

'  The  contcntH  of  thin  Article  arc  set  out  in  a  very  iiuu'li  iil)l)ioviHtc(l 
form.  Tlu!  Bcotioim  conHtituting  t)ie  varioUH  ofTciices  aro  uiifoitimatfly 
almrwt  all  in  a  (lifrereiit  form. 

-  .'»7  fi.  .")«  Vict.  c.  «<),  H.  m. 

'   n.irl.  H.   180. 

'    Illi-l.    H.   fiSO. 

'    n.i.l.[H.  (J7. 

c  c  2 


388  A    DIGEST   OF 


Shipping  Act  1894,  wilfully  makes  any  false  statement  con- 
cerning the  title  to  or  ownership  of  or  the  interest  existing 
in  any  ship  or  share  thereof;  or  knowingly  makes  use  of  any 
declaration  or  document  containing  any  such  false  statement, 
or  ^  wilfully  makes  a  false  declaration  as  to  the  qualification  of 
himself  or  any  other  person  or  corporation  to  own  any  British 
ship  or  share  therein  ;  or 

(2.)  ^  forges,  or  makes  a  false  representation  to  procure,  or 
fraudulently  uses  a  forged  or  suspended,  or  fraudulently  lends 
any,  certificate  of  competency ;  or 

(3.)  ^  fraudulently  alters,  makes  any  false  entry  in,  or 
delivers  a  false  copy  of,  any  agreement  with  a  ship's  crew,  or 
assists  in  so  doing ;  or 

(4.)  *  forges  or  procures  to  be  forged  or  presents  when 
forged  any  document,  or  knowingl}'  gives  any  false  evidence 
or  makes  any  false  representation,  in  support  of  an  application 
made  for  the  wages  of  a  seaman  received  into  His  Majesty's 
service ;  or 

(5.)  ^knowingly  and  wilfully  makes  a  false  or  fraudulent 
declaration  of  survey  or  passenger  steamer's  certificate ;  or 
forges  any  such  declaration  or  certificate  ;  or 

(6.)  ^  forges,  or  puts  off  when  forged,  any  document,  or 
knowingly  gives  or  makes  any  false  evidence  or  representation, 
under  Part  IX.  of  the  Merchant  Shipping  Act  1894  relating 
to  salvage  ;  or 

(7.)  "  forges  the  seal  or  distinguishing  mark  of  the  Board 
of  Trade  on,  or  fraudulently  alters,  any  form  issued  by  the 
Board  of  Trade  under  the  said  Act. 

^Any   oflficer    to   whose    custody   an    original    document 

1  In  this  case  the  ship  or  share  is  liable  to  forfeiture  to  the  extent  of 
the  declarant's  interest,  unless  it  is  proved  that  the  declaration  was  made 
without  the  authority  of  the  person  or  corporation  on  whose  behalf  it  was 
made. 

'  57  &  58  Vict.  c.  60,  s.  104. 

3  Ibid.  s.  121. 

*  Ibid.  a.  197. 
5  Ibid.  s.  282. 

*  Ibid.  s.  564.  This  ofifence  is  not  like  the  others  made  punishable  by 
reference  to  sect.  680,  but  the  punishment  is  the  same. 

7  Ibid.  s.  722. 

8  Ibid.  s.  695  (3). 


THE   CRIMINAL    LAW  389 

declared  to  be  admissible  in  evidence  by  the  Merchant 
Shipping  Act  1894  is  committed  is  guilty  of  a  misdemeanour, 
and  is  liable  to  eighteen  months  imprisonment,  who  wilfully 
and  falsely  certifies  any  document  to  be  a  true  copy  thereof 
or  extract  therefrom. 

Article  439. 
various  offences  under  the  merchant  shipping  act  1894. 

^  Every  superintendent  or  officer  granting  or  issuing  a 
seaman's  order  with  a  fraudulent  intent  is  guilty  of  felony, 
and  liable  to  five  years  penal  servitude. 

-  Every  person  appointed  to  any  office  or  service  by  or 
under  a  local  marine  board  is  a  clerk  or  servant  within  the 
meaning  of  sect.  68  of  the  Larceny  Act  (see  Art.  335,  ante), 
and  is  guilty  of  embezzlement  within  the  meaning  of  the 
said  section,  who 

(a.)  fraudulently  applies  or  disposes  of  any  chattel,  money, 
or  valuable  security  received  by  him  (whilst  employed  in 
such  office  or  service)  for  or  on  account  of  any  local  marine 
board,  or  for  or  on  account  of  any  other  public  board  or 
department,  for  his  own  use,  or  any  use  or  purpose  other  than 
that  for  which  the  same  was  paid,  entrusted  to,  or  received 
by  him,  or 

{h.)  fraudulently  withholds,  retains,  or  keeps  back  the  same 
or  any  part  thereof,  contrary  to  any  lawful  directions  or 
instructions  which  he  is  required  to  obey  in  relation  to  his 
office  or  service  as  aforesaid. 

^  Every  person  is  guilty  of  a  misdemeanour,  and  liable  to 
fine  or  imprisonment  with  hard  labour  for  two  years,  who 

(1.)  *  wilfully  destroys  or  mutilates  or  renders  illegible  any 
entry  in  an  official  log  book,  or  wilfully  makes  or  procures 
to  be  made  or  sissists  in  making  a  false  or  fraudulent  entry  in 
or  omi.ssion  from  an  official  log  bi^ok  ;  or 

'  'u  8l  58  Vict.  C-.  GO,  s.  147. 

-'  n.id.  H.  24H. 

^  Il»i<l.  H.  (»sn. 

*  Ibid.  B.  '-'41  (.3). 


390  A    DIGEST   OF 


^receives  any  inoiR-y  or  valuable  consideration  from  the 
person  to  whom  an  apprentice  in  the  sea-fishing  service  is 
bound,  or  to  whom  a  sea-fisliing  boy  is  bound  by  any  agree- 
ment, or  from  any  one  on  that  person's  behalf,  or  from  the 
apprentice  or  boy  or  any  one  on  the  apprentice  or  boy's  behalf, 
in  consideration  of  the  boy  being  so  bound ;  or  makes  or 
causes  any  such  payment  to  be  made. 

-  Every  one  is  guilty  of  felony,  and  is  liable  to  penal  servi- 
tude for  five  years,  who  takes  into  any  foreign  port  any  vessel, 
stranded,  derelict,  or  otherwise  in  distress,  found  on  or  near 
the  coasts  of  the  United  Kingdom,  or  any  tidal  water  within 
the  limits  of  the  United  Kingdom,  or  any  part  of  the  cargo 
or  apparel  thereof,  or  anything  belonging  thereto,  or  any 
wreck  within  those  limits,  and  there  sells  the  same. 

^  Every  person  is  guilty  of  a  common  nuisance  (see  ante, 
Art.  197)  on  whom  a  notice  under  section  667  of  the  Merchant 
Shipping  Act  1894  as  to  the  exhibition  of  false  lights  is 
served,  and  who  does  not  comply  with  the  directions  contained 
therein. 

*  Every  one  commits  a  misdemeanour,  and  is  liable  to  ^  two 
years  hard  labour,  who  commits  or  procures,  aids,  or  abets 
the  commission  of  a  contravention  of  section  1  of  the  Seal 
Fisheries  (North  Pacific)  Act  1895. 


Article  440. 

conspiracies  in  restraint  of  trade. 

^  A  conspiracy  in  restraint  of  trade  is  an  agreement  between 
two  or  more  persons  to  do  or  procure  to  be  done  any  unlawful 
act  in  restraint  of  trade. 

1  57  &  58  Vict.  c.  60,  s.  398. 

2  Ibid.  s.  535. 

3  Ibid.  s.  667.     This  offence  is  also  punishable  summarily. 

*  58  &  59  Vict.  c.  21,  3.  1  (3).  The  section  empowers  the  Kini,'  by 
Order  in  Council  to  prohibit  the  catching  of  seals  or  niaiine  animals  by 
Britisli  ships  in  Behring"s  Sea  and  the  Pacific  Ocean  north  of  40'  N.  lat., 
and  provides  that  such  Orders  must  be  obeyed. 

°  57  &  58  Vict.  c.  60,  s.  680. 

8  3  Hist.  Cr.  Law,  202-227. 


THE    CRIMINAL   LAW  391 

Illustration. 

^  The  defendants,  a  body  of  shipowners,  agreed  that  if  persons 
in  a  certain  trade  would  deal  exclusively  with  them,  such  persons 
should  have  certain  advantages  at  their  hands ;  and  that  if  they 
dealt  with  any  other  shipowner,  to  however  small  an  extent, 
they  should  lose  all  the  advantages  which  otherwise  they  would 
derive  from  dealing  with  the  defendants.  This  was  not  a 
conspiracy  in  restraint  of  trade,  because  the  defendants  used  no 
violence,  threats,  fraud,  or  coercion,  and  had  no  intention  of 
injuring  the  plaintiffs'  trade  except  in  so  far  as  such  injury  was 
incidental  to  the  improvement  of  their  own. 

Article  441. 

what  acts  done  in  restraint  of  trade  are  not 
unlawful. 

-  The  purposes  of  a  trade  union  are  not,  by  reason  merely 
that  they  are  in  restraint  of  trade,  unlawful  within  the 
meaning  of  Article  440. 

^  No  act  in  contemplation  or  furtherance  of  a  trade  dispute 
between  employers  and  workmen  is  unlawful  within  the 
meaning  of  Article  440,  unless  a  person  doing  it  would  be 
punishable  for  it  on  indictment,  or  liable  to  be  imprisoned 
(either  absolutely  or  at  the  discretion  of  the  Court  as  an 
alternative  for  some  other  punishment)  on  summary  con- 
viction. 

Article  442. 
conspiracies  in  restraint  of  trade,  misdemeanours. 

*  Every  conspiracy  in  restraint  of  trade  is  a  misdemeanour, 
but  no  per.S(m  convicted  of  a  conspiracy  to  do,  or  procure 
to  be  done,  in  restraint  <jf  trade  an  act  j)nnishable  only  on 
.summary  conviction  can  be  sentenced  to  impri.sonment  for 
more  than  three  months,  or  such  longer  time,  if  any,  as  may 

*  Moijii/  Stutmithip  Company  v.  McGmjor,  '21  Q.  \'>.  I).  544  ;  '2.'} 
Q.  li.  D.  ;VJM  ;  1892,  App.  Caa.  '2.'').  The  law  of  .oiispiiiuv  was  iiuicli 
dU<:UHHC<l  ill  tliiH  cuHe. 

»  :u  &  :i'>  Vict.  c.  :i\,  h.  2. 

5  38  &  39  Vict.  <i.  8(J,  H.  :i  The  wohIh  of  tliu  euilicr  pint  ..f  the 
nectioii  are  "  puniHliahle  aH  a  ciinie."  "  Criiiio  "  in  (loliiied  at  tlio  eiiil  of 
the  H4-ctiriii  nn  in  the  text. 

*  Ibiil.  luHt  paragrapli. 


392  A    DIGEST   OP 


have  been  prescribed  by  the  statute  for  the  punishment  of 
the  said  act  when  committed  by  one  person. 

The  Conspiracy  and  Protection  of  Property  Act  1(S75 
(38  &  39  Vict.  c.  86),  parts  of  which  arc  suunnarised  in  this 
and  the  following  Article,  docs  not  apply  to  seamen. 

Article  443. 

criminal  breaches  of  contract  of  service — intimidation 
and  picketing. 

^  Every  person  commits  a  misdemeanour,  and  is  liable  upon 
conviction  thereof  to  be  fined  £20  or  to  imprisonment  for 
three  months  with  hard  labour, 

(a.)  ^who  wilfully  and  maliciously  breaks  a  contract  of 
service  or  of  hiring,  knowing  or  having  reasonable  cause  to 
believe  that  the  probable  consequence  of  his  so  doing,  either 
alone  or  in  combination  with  others,  will  be  to  endanger 
human  life  or  cause  serious  bodily  injury,  or  to  expose 
valuable  property,  whether  real  or  personal,  to  destruction 
or  serious  injury ;  or 

(h.)  ^  who,  being  employed  by  a  municipal  authority,  or  by 
any  company  or  contractor  upon  whom  is  imposed  by  Act  of 
Parliament  the  duty,  or  who  have  otherwise  assumed  the 
duty,  of  supplying  any  city,  borough,  town,  or  place,  or  any 
part  thereof,  with  gas  or  water,  wilfully  and  maliciously 
breaks  a  contract  of  service  with  that  authority  or  company 
or  contractor,  knowing,  or  having  reasonable  cause  to  believe, 
that  the  probable  consequences  of  his  so  doing,  alone  or  in 
combination  with  others,  will  be  to  deprive  the  inhabitants 
of  that  city,  borough,  town,  place,  or  part,  wholly  or  to  a  great 
extent  of  their  supply  of  gas  or  water ;  or 

(c).  *  who,  being  a  master  legally  liable  to  provide  for  his 

servant  or  apprentice  necessary  food,  clothing,  medical  aid, 

or  lodging,  wilfully  and  without  lawful  excuse  neglects  to 

provide    the   same,  whereby  the  health  of   the  servant  or 

1  38  &  39  Vict.  c.  86,  s.  5. 

-'  Ibid. 

3  Ibid.  s.  4. 

*  Ibid.  s.  6. 


THE   CRIMINAL   LAW  393 

apprentice  is,  or  is  likely  to  be,  seriously  or  permanently 
injured ;  or 

{(l.)  ^  who,  with  a  view  to  compel  any  other  person  to 
abstain  from  doing  or  to  do  any  act  which  such  other  person 
has  a  legal  right  to  do  or  abstain  from  doing,  wrongfully  and 
without  legal  authority 

(i.)  uses  violence  to  or  -  intimidates  such  other  person  or 
his  wife  or  children,  or  injures  his  property  ;  or 

(ii.)  persistently  follows  such  other  person  about  from 
place  to  place  ;  or 

(iii.)  hides  any  tools,  clothes,  or  other  property  owned  or 
used  by  such  other  person,  or  deprives  him  of  or  hinders  him 
in  the  use  thereof;  or 

(iv.)  watches  or  besets  the  house  or  other  place  where 
such  other  person  resides,  or  works,  or  carries  on  business,  or 
happens  to  be,  or  the  approach  to  such  house  or  place ;  or 

(v.)  follows  such  other  person  with  two  or  more  other 
persons  in  a  disorderly  manner  in  or  through  any  street  or  road. 

Attending  at  or  near  the  house  or  place  where  a  person 
resides,  or  works,  or  carries  on  business,  or  happens  to  be, 
or  the  approach  to  such  house  or  place,  in  order  merely  to 
obtain  or  communicate  information,  is  not  a  watching  or 
besetting  within  (iv.). 


1  38  &  39  Vict.  c.  86,  s.  7. 

^  The  meaning  of  the  word  "  intimidates  "  in  this  section  has  been  much 
discus.se<l,  but  not  authoritatively  defined.  34  &  35  Vict.  c.  32,  s.  1, 
subs.  (2j  limited  the  intimidation  contemplated  by  that  sub-section  to 
"  such  intimidation  as  would  justif}'  a  magistrate  in  binding  over  the 
intimidator  to  keep  tlie  peace — in  other  words,  to  such  intimidation  as 
imjjlies  a  threat  of  personal  violence"  {Gibson  v.  Lawson,  1891,  2  Q.  B.  at 
1».  .S59j,  but  this  Act  is  repealed  by  38  &  39  Vict.  c.  86,  whicli  contains 
no  such  express  limitation.  It  was  lield  by  Mr.  Justice  Cave  in  tlie 
unrcjKjrted  case  of  J{.  v.  McKte.rit,  tried  at  tiie  Liverpool  Assizes, 
]>ecernber  1891,  though  it  has  never  been  more  autlioritatively  decided, 
that  sucii  a  limitation  of  the  meaning  of  the  word  nmst  be  the  implicit 
intention  of  the  later  Act.  In  Curran  v.  Trt/tartn  (1891,  2  Q.  H.  at 
J).  560y,  and  the  cases  de<;irled  at  tlie  same  time,  it  was  lield  in  substance 
that  a  declaration  by  ofiicials  of  a  trade  union  tliat  if  their  wishes  were 
not  complied  with  they  W(juld  call  out  the  union  workmen,  followed  by 
such  calling  out,  was  not  intimidation  of  the  persons  whose  action  it  was 
intended  to  iniluence.  See  It.  v.  Dntilt,  1867,  10  Cox,  C.  C.  r»92,  anil 
L'oiinor  v.  KtiU  (witli  which  are  reported  (lihson  v.  Lairsuii  and  Curran  v. 
Trdtavtii),  1891,  2  Q.  IJ.  545. 


394  A   DIGEST  OF 


^  Cases  under  this  Article  may  be  determined  by  a  Court  of 
summary  jurisdiction,  or,  if  the  accused  objects  to  being  tried 
for  such  offence  by  such  a  Court,  the  Court  of  summary 
jurisdiction  [must-]  deal  with  the  case  in  all  respects  as  if 
the  offender  were  charged  with  an  indictable  offence,  and  the 
offence  may  be  prosecuted  on  indictment  accordingly. 


Article  444. 

third  offences  against  the  truck  acts. 

^  Any  person  is  guilty  of  a  misdemeanour,  and  is  liable  to 
a  fine  not  exceeding  £100,  who,  being  an  employer  of  any 
*  workman,  by  himself  or  by  the  agency  of  any  other  person 
or  persons,  directly  or  indirectly  enters  into  any  contract,  or 
makes  any  pa}TiQent  declared  illegal  by  the  Truck  Acts,  after 
having  been  twice  convicted  of  the  same  offence. 

1  38  &  39  Vict.  c.  86,  s.  9. 

2  "  may,"  but  apparently  it  means  "  must." 

^  1  &  2  Will.  4,  c.  37,  s.  9.  A  complete  account  of  the  offences 
referred  to  in  this  Article  will  be  found  in  Oke's  Magisterial  Synopsis  at 
pp.  424-4'29  ;  as  third  off"ences  are  very  rare,  it  has  not  been  thought 
worth  while  to  set  them  out  further  above.  The  Truck  Amendment 
Act  1887,  50  &  51  Vict.  c.  46,  is  by  sect.  1  to  be  read  as  one  with  the 
Truck  Act  1831.  Third  offences  are  now  punishable  summarily  as  well 
as  on  indictment,  50  &  51  Vict.  c.  46,  ss.  11,  13. 

■*  The  Act  of  1831  originally  applied  only  to  certain  artificers  as  therein 
defined  ;  it  extends  to  all  workmen  as  defined  in  the  Employers  and 
Workmen's  Act  1875  ;  .see  Oke's  Synopsis,  p.  971  ;  oU  &  51  Vict.  c.  46, 
ss.  2  and  1. 


THE   CHIMI.YAL   LAW  395 


APPENDIX  OF  NOTES 


NOTE  I. 

(to  Article  31.) 

Hardly  any  legal  doctrine  is  less  satisfactory  tliaii  the  one 
embodied  in  this  Article.  The  rule  has  been  too  long  settled  to 
be  disputed  ;  but  on  examining  the  authorities  in  their  historical 
order,  it  appears  to  me  to  have  originated,  like  some  other 
doctrines,  in  the  anxiety  of  judges  to  devise  means  by  which  the 
excessive  severity  of  the  old  criminal  law  might  be  evaded. 

The  doctrine  as  it  now  stands  is  uncertain  in  its  extent  and 
irrational  as  far  as  it  goes.  It  is,  besides,  rendered  nearly  un- 
meaning by  the  rule  that  the  presumption  is  liable  to  be  rebutted 
by  circumstances.  The  first  authority  on  the  subject  is  Bracton, 
in  whose  time  the  more  recent  doctrine  appears  to  have  been 
unknown.  He  says  : — "  Uxor  vero  furi  desponsata,  non  tenebitur 
ex  furto  viri,  quia  virum  accusare  non  debet  nee  detegere  furtum 
.suum  nee  feloniam,  cum  ipsa  sui  potestatem  non  habeat,  sed  vir. 
Consentire  tamen  non  debet  felonise  viri  sui  nee  coadjutrix  esse, 
sed  nequitiam  et  feloniam  viri  impedire  debet  quantum  potest. 
In  certis  vero  casibus  do  furto  tenebitur,  si  furtum  inveniatur  sub 
chivibus  uxoris,  (juas  quidem  clavi^s  habere  debet  uxor  subcustodia 
et  cunl  sua.  Clares  videlicet  dispensie  suai,  archai  suie,  etscrinii 
sui  :  et  si  alitjuando  furtum  sub  clavibus  istis  inveniatur,  uxor 
cum  viro  culpabilis  erit.  Sed  quid  si  res  furtiva  in  manu  uxoris 
inveniatur,  nunifjuid  tenebitur  viri  Non  ut  videtur,  nisi  ei 
expresse  consenserit,  vel  cum  rem  ei  warrantizaverit  cum  ipsum 
vocaverit  ad  warrantum,  et  tunc  cunsensisse  pra-sumitur  nisi 
expn;hS(!  dissentiat,  vel  nisi  de  eo  prjL'sumatur  (juod  lidclis  sit  t-o 
qu(Kl  Hocietati'm  talis  uxoris  devitavit  in  (juantum  pcjtuit.  lliiu 
quid  erit  si  uxor  cum  viro  conjuncta  fuerit,  vol  confessa  cjuod  viro 


396  A    DIGEST   OF 


suo  consilium  prsestiterit  et  uuxiliuni,  i)[uni([ui(]  tenobunturanibo  ? 
Imo  ut  videtur,  quia  vir  potest  teneri  per  se  cum  sit  malus,  et  uxor 
poterit  esse  bona  et  fidelis  et  liberari.  Item  uxor  mala  per  se  et 
vir  fidelis.  Cum  ergo  uterque  possit  esse  malus  per  se  et  alter 
eorum  bonus,  ita  potei-it  uterque  eoruin,  simul  et  conjunctim,  esse 
malus  sicut  bonus.  Solutio.  Non  igitur  erit  in  omni  casu  uxor 
deliberanda  propter  consilium,  auxilium,  et  consensum,  desicut 
sunt  participes  in  crimine,  ita  erunt  participes  in  poena.  Et  licet 
obedire  debeat  viro,  in  atrocioribus  tamen  suis  latrociniis  ei  non 
erit  obediendum.  Poterit  quidem  vir  ligare  et  tenere,  et  uxor 
sponte  et  non  coacta  occidere,  et  ita  ut  videtur  tenetur  de 
maleficio  uterque.  De  concubina  vero,  vel  familia  domus,  non 
erit  sicut  de  uxore.  Ipse  vero  accusare  tenentur,  vel  a  servitio 
recedere  alioquin  videntur  consentire."  (Bracton,  Lib.  3,  Tract 
2,  cap.  32,  sect.  10,  Rolls  series,  vol.  ii.  p.  518.) 

The  effect  of  this  passage  is  that  the  wife  is  not  bound  to 
accuse  her  husband,  nor  is  she  to  be  regarded  as  accessory  after 
the  fact  to  a  theft  committed  by  him  merely  because  she  receives 
the  stolen  goods,  though  she  may  be  so  regarded  if  she  so 
conducts  herself  as  to  show  actual  consent  to  the  theft.  The 
passage  does  not  contain  a  word  about  her  right  to  steal  with 
impunity  in  his  presence. 

The  next  authority  is  Assise  27  Edw.  3,  cap.  40,  vol.  iv, 
p.  137  of  Brooks'  edition,  1679,  which  is  in  these  words  : — "  Un 
feme  fuit  arraine  de  c  q  el  aver  feloii  emble  ii  s  de  pain  ;  q  disq. 
elle  fist  per  commandemt  de  celuy  qui  fuit  son  baron  a  eel  temps. 
Et  les  justices  ne  voilent  prendre  pur  pite  a  sa  conis,  mes 
pristenmt  I'enquest ;  per  q  fut  trove  que  el'  le  fit  per  cohcrsion 
de  son  baron  maugre  le  soe  per  que  el'  ala  quite,  et  dit  fui  q  p 
command  de  baron  sans  auter  cohersion,  ne  serra  nul  manner  de 
felon,"  &c. 

In  this  case  the  jury  seem  to  have  found  actual  coercion  by 
the  husband.  The  dictum  that  the  husband's  command,  he 
being  absent,  relieves  the  wife  from  guilt  is  clearly  wrong  ac- 
cording to  more  modern  authorities.  In  Fitzherbert's  Abridg- 
ment (a.d.  1565),  Corone,  199,  the  case  in  the  Book  of  Assizes  is 
quoted  in  an  abridged  form  :  and  Staundforde  (a.d.  1583j,  c.  19, 
quotes  Fitzherbert,  but  adds  a  qucere  to  the  dictum  appended  to 
the  case  on  wliich  Fitzherbert  relies.  He  does  not,  however, 
quote  the  case  itself. 

Coke,    3rd   Inst.   ch.   xlvii.    p.    108,   says  : — "A   feme  covert 


THE   CRIMINAL   LAW  397 

committeth  not  larceny  if  she  does  it  by  the  coertion  of  her 
husband  ;  but  a  feme  covert  may  commit  larcenj'^  if  she  doth  it 
without  the  coertion  of  her  husband."  He  quotes  27  Ass.  40, 
and  Staundforde,  but  does  not  say  that  the  bare  presence  of  the 
husband  is  to  be  regarded  as  coercion,  and  does  not  notice  the 
dictum  as  to  the  husband's  command. 

Bacon  (Law  Tracts,  p.  57,  ed.  1737),  upon  the  maxim 
"  Necessitas  inducit  privilegium  quoad  jura  privata,"  observes, 
"  the  second  necessity  is  of  obedience,  and  therefore  when  baron 
and  feme  commit  a  felony,  the  feme  can  neither  be  principal 
nor  accessory,  because  the  law  intends  her  to  have  no  will  in 
regard  of  the  subjection  and  obedience  she  owes  to  her  husband." 
For  this  he  quotes  the  passage  in  Staundforde  already  referred 
to,  and  Fitzherbert  (Corone,  IGO),  which  states,  as  the  effect 
of  a  case,  in  2  Edw.  3,  that  eight  men  and  a  woman  being 
convicted  of  felony,  and  the  woman  declaring  that  she  was  the 
wife  of  one  of  the  men,  and  the  jury  saying  they  knew  nothing 
of  it,  the  judge  inquired  of  the  bishop.  Lord  Bacon's  proposition 
thus  goes  infinitely  beyond  his  authorities. 

Dalton  (Justice,  ch.  clvii.)  says: — "A  feme  covert  doth  steal 
goods  by  the  compulsion  or  constraint  of  her  husband.  This  is 
no  felony  in  her."  And  he  quotes  Fitzherbert  and  the  case 
quoted  by  Fitzherbert.  He  also  quotes  Bracton  in  a  very  unin- 
telligent and  fragmental  way,  and  says  that  in  murder  and 
treason  the  husband's  compulsion  does  not  excuse  the  wife.  As 
to  murder,  his  authority  is  Marrow,^  an  author  of  the  time  of 
Henry  VI [.  As  to  treason,  he  quotes  Fitzherbert  (Cor.  130). 
This  passage  I'efers  to  the  case  of  a  woman  sentenced  to  be  burnt 
for  coining,  respited  on  the  ground  of  pregnancy,  delivered  of 
her  child,  and  becoming  pregnant  again  before  she  was  burnt. 
Tlie  case  does  not  say  tliat  she  was  married  at  all,  and  rather 
implies  that  she  was  not. 

Hale  (1  P.  C.  -15)  says: — "If  she  (the  wif(!)  commit  larceny 
by  the  coercion  of  the  husband,  she  is  not  guilty  (27  Ass. 
40),  and  according  to  some,  if  it  be  by  the  command  of  her 
husl)aiid,  which  seems  to  be  law  if  the  husband  be  present,  but 
n'jt  if  her  husband  be  absent  at  th(<  time  aiul  placr  of  tlu^  fdonv 
committed. 

'  I.Ariil>ar<rH  "  IVcface  "  begins,  "To  write  of  the  oflice  and  duties  of 
a  JiiHtif-e  of  the  peace,  after  H.  .Marrow,"  is  like;  "  hringing  owls  to 
AtheiiH.  "  III  }Vi/l<'H  V.  lirid'ji.r,  lUliJ,  '1  H.  fc  AM.  'JHL',  Marrow  is  said 
to  have  been  a  Master  in  Chancery. 


398  A    DIGEST   OF 


"  But  this  command  or  coercion  of  the  husband  doth  not 
excuse  in  case  of  treason  nor  of  murder,  in  regard  of  the  heinous- 
ness  of  those  crimes."  He  quotes  for  this  the  passage  in  Dalton 
given  above  and  the  cases  of  Arden  and  Somerville  as  to 
treason,  and  Lady  Somerset  as  to  murdei-.  He  goes  on  :  "If 
the  husband  and  wife  together  commit  hirceny  or  burghxry,  by 
the  opinion  of  Bracton  (lib.  iii.  ch.  xxxii.  s.  10)  both  are 
guilty  "  (Bracton  says  nothing  of  the  sort),  "  and  so  it  hath 
been  practised  by  some  judges.  Vide  Dalt.,  ubi  supra,  ch.  civ." 
(Dalton  does  not  say  so).  "  And  possibly  in  strictness  of  law, 
unless  the  actual  coercion  of  the  husband  appear,  she  may  be 
guilty  in  such  a  case  ;  for  it  may  many  times  fall  out  that  the 
husband  doth  commit  larceny  by  the  instigation,  though  he 
cannot  in  law  do  it  by  the  coercion,  of  his  wife  ;  but  the  latter 
practice  hath  obtained,  that  if  the  husband  and  wife  commit 
burglary  and  larceny  together,  the  wife  shall  be  acquitted,  and 
the  husband  only  convicted  ;  and  with  this  agrees  the  old  book 
(2  E.  3,  Corone,  160).  And  this  being  the  modei-n  practice, 
and  in  favorem  vitce,  is  fittest  to  be  followed  :  and  the  rather 
because  otherwise  for  the  same  felony  the  husband  may  be 
saved  by  the  benefit  of  his  clergy,  and  the  wife  hanged,  where 
the  case  is  within  clergy,  though  I  confess  this  reason  is  but 
of  small  value ;  for  in  manslaughter  committed  jointly  by 
husband  and  wife  the  husband  may  have  his  clergy,  and  yet 
the  wife  is  not  on  that  account  to  be  privileged  by  her 
coverture. 

"  And  accoi'dingly  in  the  modern  practice  where  the  husband 
and  wife,  by  the  name  of  his  wife,  have  been  indicted  for  a 
larceny  or  burglary  jointly,  and  have  pleaded  to  the  indictment, 
and  the  wife  convicted,  and  the  husband  acquitted,  merciful 
judges  have  used  to  reprieve  the  wife  before  judgment,  because 
they  have  thought,  or  at  least  doubted,  that  the  indictment  was 
void  against  the  wife,  she  appearing  by  the  indictment  to  be  a 
wife,  and  yet  charged  with  felony  jointly  with  her  husband. 

"  But  this  is  not  agreeable  to  law,  for  the  indictment  stands 
good  against  the  wife,  inasmuch  as  every  indictment  is  as  well 
several  as  joint." 

This  extract  probably  gives  the  key  to  the  confusion  of  the 
law  upon  this  subject.  It  was  thought  hard  that  a  woman 
should  be  hanged  for  a  theft  for  which  her  husband  had  his 
clergy,    and    accordingly  a  loophole    was    devised    for    married 


THE   CRIMIXAL    LAW  399 

women,  similar,  as  far  as  theft  was  concerned,  to  clergy  for  men. 
Hale's  remark  as  to  manslaughter  shows  how  incomplete  and 
unsystematic  the  arrangement  was. 

Hawkins  (1— i)  says  : — "  If  she  ...  be  guilty  of  treason,  murder, 
or  robbery,  in  company  with,  or  by  the  coercion  of,  her  husband,  she 
is  punishable  as  much  as  if  she  were  sole."  And  Blackstone 
excepts  "treason  and  mala  in  se,  as  murder  and  the  like." 

The  recent  cases  on  the  subject  are  referred  to  in  the  Illus- 
trations to  the  Article  and  in  the  footnote. 

Surely,  as  matters  now  stand,  and  have  stood  for  a  great 
length  of  time,  married  women  ought,  as  regards  the  commission 
of  crimes,  to  be  on  exactly  the  same  footing  as  other  people.  But 
owing  partly  to  the  harshness  of  the  law  in  ancient  times,  and 
partly  to  its  uncertain  and  fragmentary  condition,  it  is  disfigured 
by  a  rule  which  is  tolerable  only  because  it  is  practically  evaded 
on  almost  every  occasion  where  it  ought  to  be  applied. 


NOTE  II. 

(to  Article  48.) 

In  B.  V.  Welham,  1845,  1  Cox,  C.  C.  192,  .Mr.  Justice 
Patteson,  after  consulting  Baron  Parke,  said,  "  We  are  both 
clearly  of  opinion  that  there  can  be  no  inciting  to  commit  a 
felony  unless  the  party  incited  knows  that  the  act  in  which  he 
is  to  engage  is  a  felony."  Upon  this  Mr.  Greaves  (1  Russ.  Cr. 
189,  note  (y)  )  asks,  "How  can  the  guilt  of  the  inciter  depend 
upon  the  state  of  mind  of  the  incited  1  The  inciting  and  the 
intention  of  the  inciter  constitute  the  offence."  As  I  understand 
the  facts  of  li.  v,  Welham,  Welham  incited  Hood  to  carry  off 
com  which  Hood  supposed  Welham  to  have  a  right  to  carry  off. 
If  this  were  so,  Welham's  offence,  if  any,  was  an  attempt  to 
commit  a  felony  by  an  innocent  age?it,  and  not  an  incitement  to 
commit  a  felony,  which  view  would  justify  the  language  of  the 
two  eminent  judges.  A  tells  B  to  put  into  C's  tea  .something 
which  I>  supposed  to  be  powdered  sugar,  but  which  is  really 
arsenic.  This  is  an  attemjit  by  A  t<t  nmidir  (',  but  it  is  not 
an  inciting  B  to  commit  murder. 

Tlii.s  view  is  Htrerigtlu-ned  by  Wi/fiams'  (,'asi;  I  s  1  I,  I  I  )en.  C.  C. 
39,  in  which  it  was  held  that  to  instigate  a  persdn  to  jioisoii 
another    unrler    such    circumstances    that    the    instigator    would 


400  A    DIGEST   OF 


have  been  an  accessory  before  the  fact  if  the  poison  had  been 
given,  was  not  an  attempt  to  administer  poison  under  7  Will.  4 
and  1  Vict.  c.  85,  s.  1,  with  which  cf.  24  and  25  Vict.  c.  100, 
s.  11. 

NOTE  III. 

(to  Article  156;  Maintenance.) 

It  is  not  without  hesitation  that  I  have  inserted  these  vague 
and  practically  obsolete  definitions  in  this  book.  As,  however, 
maintenance  and  champerty  hold  a  place  in  all  the  text-books, 
I  have  not  thought  it  proper  to  omit  all  notice  of  them.  A  full 
account  of  the  crimes  themselves,  of  the  vagueness  of  the  manner 
in  which  they  are  defined,  and  of  the  reasons  why  they  have 
so  long  since  become  obsolete,  may  be  seen  in  the  Fifth  Report 
of  the  Criminal  Law  Commissioners,  pp.  34-9.  The  Com- 
missioners observe  in  conclusion: — "Prosecutions  for  offences 
comprehended  under  the  general  head  of  maintenance  are  so 
rare  that  their  very  rarity  has  been  a  protection  against  the 
disapproval  of  judges,  and  those  alterations  which  a  frequent 
recurrence  of  doubt  and  vexation  would  probably  have  occa- 
sioned. .  .  .  But  although  no  cases  have  occurred  where  the 
doctrine  of  maintenance  has  been  discussed  in  the  Courts,  it 
is  by  no  means  true  that  this  law  has  not  been  used  as  the 
means  of  great  vexation.  Instances  of  this  have  fallen  within 
our  own  professional  observation  in  the  case  of  prosecutions 
commenced,  although  not  persevered  in."  The  Commissioners 
recommend  that  all  these  offences  should  be  abolished.  The 
definition  of  barratry  in  particular  is  so  vague  as  to  be  (juite 
absurd ;  and  the  statutory  provision  as  to  attorneys  practising 
after  a  conviction  would  be  utterly  intolerable  if  it  had  not  been 
long  forgotten.  I  should  suppose  that  there  is  no  other  enact- 
ment in  the  whole  statute  book  which  authorises  any  judge  to 
sentence  a  man  to  seven  years  penal  servitude  after  a  summary 
inquiry  conducted  by  himself  in  his  own  way. 

These  ofiences,  as  sufficiently  appears  from  the  preambles  of 
the  various  statutes  relating  to  them,  are  relics  of  an  age  when 
courts  of  justice  were  liable  to  intimidation  by  the  rich  and 
powerful  and  their  dependants.  As  long  as  the  verdict  of  a 
jury  was,  more  or  less,  in  the  nature  of  a  sworn  report  of  local 
opinion,   made    by  witnesses  officially  appointed   lo  make  such 


TUE    CRIMIXAL    LAW  401 

reports,  intimidation  must  have  been  possible,  and,  in  many 
cases,  easy.  ^lany  statutes  on  this  subject  ^  are  still  in  force, 
and  the  law  relating  to  it  is  to  be  found  in  1  Hawkins,  454. 
The  exceptions  to  the  general  rule,  that  a  man  is  not  to  assist 
another  in  a  quarrel  in  which  the  maintainer  has  no  interest, 
are  so  numerous,  and,  in  some  cases,  so  vague  {e.g.  a  man  may 
assist  his  neighbour  from  charity),  that  no  less  vague  pro- 
position than  the  one  in  the  text  would  faithfully  represent  the 
law. 

NOTE  IV. 

(to  Articles  174,   175.) 

These  offences  have,  at  least  in  modern  times,  been  made  the 
subject  of  few,  if  of  any,  prosecutions.  The  excessive  severity 
of  the  judgment  for  misprision  of  treason  no  doubt  escaped  notice 
when  forfeitures  for  felony  were  abolished.  The  33  &  34  Vict. 
c.  23  takes  no  notice  of  misprisions. 

The  definition  of  misprision  of  felony  is  extremely  vague.  I 
have  found  no  authority  as  to  what  amounts  to  a  concealment. 
The  obligation  to  discover  treason  to  a  judge  or  magistrate  is 
mentioned  by  Hale.  In  early  times,  when  the  offence  was  com- 
moner and  more  important,  the  obligation  was  very  clearly  set 
forth.  "  Si  sit  aliquis  qui  alium  noverit  inde  "  {i.e.  of  treason) 
"  esse  culpabilem,  vel  in  aliquo  criminosum,  statim  et  sine 
intervallo  aliquo  accedere  debet  ad  ipsum  regem  si  possit,  vel 
raittere  si  venire  non  possit  ad  aliquem  regi  familiarem  et 
omnia  ei  manifestare  per  ordinem.  Nee  enim  debet  morari  in 
uno  loco  per  duas  noctes  vel  per  duos  dies  antequam  personam 
regis  videat,  nee  debet  ad  aliqua  negotia  quamvis  urgentissima 
se  convertere,  quia  vix  permittitur  ei  quod  retro  aspiciat." 
Bracton,  lib.  iii.,  fo.  118  b. 

NOTE  V. 

(to  Auticlk    191.) 

The  latter  part  of  this  Article  is  grounded  partly  upon 
general  considerations  and  partly  upon  the  case  referred  to  in 
the  IlIustrationH.      Further   illustrations  of  the   same   principle 

'  .3  K.lw.  I,  c.  'J.-i;   i:{   Ivlw.  I,  ,.  v.\  :  -JH  Ivlw.  I,  r.  II  ;    1  K.lw    ;{    k| 
2.  .-.  14:1   Kic.  2,  <;.  4  ;   .'12  Hcii.  H,  <•.  'J. 

I»    I) 


402  A    DIGEST   OF 


might  easily  be  given.  For  instance,  the  publication  of  an 
edition  of  Juvenal,  Aristophanes,  Swift,  Defoe,  Bayle's  Dic- 
tionary, Rabelais,  Brantome,  Boccaccio,  Chaucer,  &c.,  cannot  be 
regarded  as  a  crime ;  yet  each  of  these  books  contains  more  or 
less  obscenity  for  which  it  is  impossible  to  offer  any  excuse 
whatever.  I  know  not  how  the  publication  of  them  could  be 
justified  except  by  the  consideration  that  upon  the  whole  it  is 
for  the  public  good  that  the  works  of  remarkable  men  should 
be  published  as  they  are,  so  that  we  may  be  able  to  form  as 
complete  an  estimate  as  possible  of  their  characters  and  of  the 
times  in  which  they  lived.  On  the  other  hand,  a  collection  of 
indecencies  might  be  formed  from  any  one  of  the  authors  I  have 
mentioned,  the  separate  publication  of  which  would  deserve 
severe  punishment. 

In  scientific  matters  the  line  between  obscenity  and  purity 
may  be  said  to  trace  itself,  as  is  also  the  case  in  reference  to  the 
administration  of  justice.  It  may  be  more  difficult  to  draw  the 
line  in  reference  to  works  of  art,  because  it  undoubtedly  is 
part  of  the  aim  of  art  to  appeal  to  emotions  connected  with 
sexual  passion.  Practically  I  do  not  think  any  difficulty  could 
ever  arise,  or  has  ever  arisen.  The  difference  between  naked 
figures  which  pure-minded  men  and  women  could  criticise 
without  the  slightest  sense  of  impropriety,  and  figui'es  for  the 
exhibition  of  which  ignominious  punishment  would  be  the  only 
appropriate  consequence,  makes  itself  felt  at  once,  though  it 
would  be  difficult  to  define  it. 


NOTE  VI. 

(to  Articles   199-204.) 

There  is  a  good  deal  of  difficulty  in  bringing  into  a  clear  and 
systematic  form  the  provisions  of  the  various  statutes  relating 
to  the  suppression  of  disorderly  houses,  and  especially  gaming- 
houses. I  think,  however,  that  the  text  represents  their  effect 
with  substantial  accuracy. 

The  matter  stands  thus.  The  earliest  Act  upon  the  subject 
now  in  force  is  33  Hen.  8,  c.  9,  "An  Act  for  Maintenance  of 
Artillery  and  Debarring  of  Unlawful  Games."  This  Act  was 
intended  to  compel  people  to  practise  archery  by  making  all 
other  amusements  unlawful,  and  it  accordingly  forbids  by  name 


THE   CRIMINAL    LAW  403 

bowls,  quoits,  tennis,  and  other  various  games,  cards  and  dice, 
and  all  other  unlawful  games  prohibited  by  any  of  the  statutes 
which  it  repealed,  as  well  as  all  other  unlawful  games  to  be 
subsequently  invented.  The  expression  "  unlawful  games  "  is  no- 
where defined,  unless  it  means  every  amusement  except  archery. 

By  the  10  Will.  3,  c.  23,  lotteries  were  forbidden.  By  the  12 
Geo.  2,  c.  28,  "  the  games  of  ace  of  hearts,  pharaoh,  basset,  and 
hazard  "  were  declared  to  be  lotteries,  and,  as  well  as  what  we 
now  call  raffles,  were  forbidden  under  penalties.  By  the  13  Geo.  2, 
c.  19,  the  same  course  was  taken  as  to  a  game  called  passage,  "and 
all  other  games  invented  or  to  be  invented  with  one  or  more  die 
or  dice,"  backgammon  only  excepted.  By  18  Geo.  2,  c.  34,  these 
enactments  were  extended  to  "  a  certain  pernicious  game  called 
roulet  or  roly-poly,"  and  that  game  and  "  any  game  at  cards  or 
dice,  alread}'  prohibited  by  law,"  were  prohibited  afresh. 

The  8  tk  9  Vict.  c.  109  repeals  so  much  of  the  Act  of  Henry 
VIII.  as  relates  to  games  of  mere  skill,  and  provides  that  upon 
any  information  or  indictment  for  keeping  a  common  gaming- 
house "  it  shall  be  sufficient  to  prove  "  the  matter  stated  in 
Article  204. 

This  enactment  was  passed  in  order  to  dispose  of  doubts  that 
apart  from  its  provisions  it  would  have  been  necessary  to  prove 
that  the  parties  played  at  one  of  the  games  specifically  prohibited 
by  the  Acts  of  Geo.  II.,  or  at  one  of  the  games  of  chance 
prohibited  by  the  Act  of  Henry  VIII. 


NOTE    VII. 

(General  Notk  to  Part  V.) 

Tlif  arrangement  of  this  part,  and  in  particular  tlu"  composition 
of  Chapters  XXT.  and  XXII.,  has  bf^en  the  most  dilHcult  portion 
of  the  task  of  preparing  this  Digest.  No  one  who  has  not  made 
a  special  study  of  the  subject  can  have  any  adequate  notion  of 
the  extreme  confusion  of  the  authorities,  or  of  tlie  difficulty  of 
extracting  anything  systematic  and  d('finit((  from  a  number  of 
scattered  hints  and  isolated  decisions  upon  particular  cases — 
mostly  relating  to  the  law  of  homicide.  Upon  a  full  examina- 
tion of  the  authorities  on  this  subject  it  appeared  to  me  that  the 
law  contained  in  tlieni  ouglit  to  be  dividcfl  into  four  parts — 
namely: — ].   Cases  in  which  it  is  not  crin)inal    to   iiillict  death 

P  |)  3 


404  A    DIGEST   OF 


ov  bodily  harm  intentionally.  These  are  the  execution  of  legal 
sentences,  keeping  the  peace,  prevention  of  crime,  self-defence, 
the  use  of  lawful  force,  consent,  and  accident.  The  expression 
"  lawful  force  "  is  unavoidably  vague.  To  enumerate  every  case 
in  which  the  use  of  personal  violence  may  be  justified  would  be 
inconsistent  with  the  scheme  of  this  work.  It  would,  for 
instance,  be  going  beyond  the  limits  of  criminal  law  to  inquire 
into  the  extent  of  the  right  of  correction  vested  in  parents, 
masters,  captains  of  merchant  ships,  &c.,  or  of  the  right 
of  the  owner  of  a  personal  chattel  to  take  it  away  from  a 
trespasser,  or  to  try  to  enumerate  all  the  cases  in  which 
civil  and  criminal  process  may  be  executed  by  the  use  of 
force,  and  the  conditions  necessary  to  make  it  legal.  I  have 
accordingly  confined  myself  to  the  general  principles  stated  in 
Articles  220,  221. 

2.  Cases  in  which  the  infliction  of  death  or  bodily  harm  by 
omissions  is  or  is  not  criminal.  Injuries  caused  by  the  omission 
to  do  an  act  which  the  negligent  person  is  under  a  legal  duty  to 
do  stand  on  the  same  footing  as  injuries  caused  by  unlawful 
acts.  It  is,  therefore,  necessary  to  define  the  commoner  and 
more  important  of  the  legal  duties  which  tend  to  the  preservation 
of  life.  I  have,  therefore,  deduced  them  in  Chapter  XXII.  from 
the  different  decisions  in  which  a  violation  of  them  has  been 
held  to  occur.  Of  course  the  chapter  does  not  contain  an 
exhaustive  list  of  all  the  duties  which  might  tend  to  the, 
preservation  of  life  under  particular  circumstances,  though  I 
hope  it  notices  the  most  important  of  them. 

3.  Cases  relating  to  homicide  generally  and  apart  from  the 
distinction  between  murder  and  manslaughter.  Such  are  the 
point  of  time  at  which  a  child  becomes  a  human  being,  the 
degree  of  connection  between  an  act  and  the  death  caused  by  it 
necessary  in  order  to  enable  us  to  say  that  the  agent  has  killed 
the  deceased,  and  the  case  in  which  the  act  done  is  not  the  sole" 
cause  of  death.  Thus,  if  an  unborn  child  receives  an  injury  oi 
which  it  dies  before  it  is  fully  born,  the  infliction  of  the  injury! 
cannot  be  either  murder  or  manslaughter.  If  it  dies  after  it 
is  fully  born,  the  infliction  of  the  injury  may  be  either  justifi 
able  homicide,  accidental  homicide,  manslaughter,  or  murder 
according  to  circumstances.  This  makes  it  possible  to  enumeratt! 
the  cases  in  which  homicide  is  unlawful,  and  so  to  give  s 
specific  meaning  to  the  expression  "  unlawful  homicide." 


f 


THE    CRIMINAL   LAW  405 

4.  The  definition  of  malice  aforethought.  Unlawful  homicide 
must  be  manslaughter  at  least,  and  may  be  murder  if  it  is 
accompanied  by  malice  aforethought ;  and,  after  dealing  with 
this,  the  transition  to  the  less  serious  bodily  injuries,  felonious 
or  otherwise,  is  easy. 

When  this  division  of  the  subject  is  carried  out  it  looks 
simple ;  at  least  I  hope  so ;  but  any  one  who  will  try  the 
experiment  of  referring  to  the  authorities  will  believe  me  when 
I  assert  that  it  cost  me  weeks  of  thought  and  labour  to  put  the 
matter  in  this  shape.  I  believe,  however,  that  it  is  now  not 
very  incomplete. 

The  table  on  p.  406  shows,  I  think,  that  every  imaginable 
kind  of  homicide  has  been  considered,  and  has  been  classified  as 
lawful  or  unlawful  in  some  part  or  other  of  Chapters  XXI., 
XXII.,  and  XXXII.,  and  if  this  be  so  the  definitions  of  murder 
and  manslaughter  must  be  also  complete. 

This  table  gives  seven  distinct  kinds  of  homicide,  as  follows : — 

1.  Homicide  by  an  act  accompanied  by  a  lawful  intention  to 
kill  or  hurt  (Chapter  XXI.). 

2.  Homicide  by  an  act  accompanied  by  an  unlawful  intention 
to  kill  or  hurt  (Article  243  {a.)  ). 

3.  Homicide  by  an  act  in  itself  lawful,  and  not  accompanied 
by  an  intention  to  kill  or  hurt  (Article  231). 

4.  Homicide  by  an  act  in  itself  unlawful,  but  not  accompanied 
by  an  intention  to  kill  or  hurt  (Article  243  (c.)  ). 

5.  Homicide  by  an  omission  to  discharge  a  legal  duty 
amounting  to  culpable  negligence  (Chapter  XXII.,  Article   243 

{h.)  ). 

G.  Homicide  by  an  omission  to  discharge  a  legal  duty  not 
amounting  to  culpable  negligence  (Article  232). 

7.  Homicide  by  an  omission  to  do  an  act  not  amounting  to  a 
legal  duty  (Article  233). 

Of  the.se  Nos.  1,  3,  6,  and  7  are  not  unlawful  in  the  sense  of 
being  criminal.  Nos.  2,  4,  and  5  are  unlawful.  Every  act 
falling  within  these  definitions  must  be  manslaughter  at  least, 
and  may  be  murder  if  it  is  accompanied  by  malice  aforethought, 
as  defined  in  the  next  chapter,  and  is  n(jt  pnnoked. 

Unless  some  kind  of  homicide  can  Ije  suggested  which  is  not 
cornpn-hended  in  one  or  other  of  these  classes,  the  sul)ject  is 
exhausted  in  these  chapters. 


406 


A    DIGEST  OF 


~    o    a 


S  ^ 

OQ   "^    - 

•  ^     CO 

nS   to 


H  ce 


c-^ 


>i 

w 

>i  o 

rfi    -i^         . 

■f^ 

'^  a  u 

<o  o   ^ 

•a-^-^ 

(8    C    t, 

&«    O 

C    3  ;^ 


'  ' 

hn 

•^ 

*3 

^ 

m 

as 

<^    cS 


<u  tec; 
*^  c  > 

•3  '3    c4 

-^  '^  's 


THE    CRIMINAL    LAW  407 

NOTE   7III. 

(Article    244.) 
Defixitiux  of  Murder  axd  Manslaughter. 

This  definition  represents  the  solution  at  which  I  have 
arrived  after  much  consideration  of  one  of  the  most  difficult 
problems  presented  by  the  criminal  law — the  problem  of  giving 
in  a  short  compass  the  result  of  a  great  number  of  decisions 
and  statements  by  authoritative  writers  upon  the  subject  of 
murder. 

I  do  not  propose  in  this  Note  to  examine  the  history  of  the  law 
on  this  subject,  or  to  enter  into  any  inquiry  as  to  its  merits  and 
demerits.  I  propose  simply  to  show  that  it  is  stated  corx-ectly 
in  the  text.^  It  will  be  sufficient  for  this  purpose  to  show 
that  the  definition  which  I  have  given  coincides  with  the  theory 
laid  down  by  the  authorities  on  the  subject,  which  I  shall  try 
to  establish  by  showing  that  my  definition  of  murder  and  man- 
.slaughter  respectively  will  be  found  upon  examination  to  be 
equivalent  to  what  is  stated  in  Coke's  3rd  Institute,  Chapters 
VII.  and  VIII.,  1  Hale's  Pleas  of  the  Crown,  pp.  411-502 
(Chapters  XXXI.-XLII.  both  inclusive),  and  Foster's  Dis- 
course on  Homicide  (Crown  Law,  255-337).  The  existing  law 
on  the  subject  is  founded  mainly  upon  these  works,  and  the 
almost  innumerable  decisions  bearing  upon  the  subject  are  all 
ai>plications  of  the  theory  which  is  there  laid  down.  The 
decisions  have  been  collected  more  or  less  fully,  and  arranged 
in  a  more  or  less  satisfactory  way,  by  various  writers,  but  for  every 
practical  purpose  the  collection  contained  in  Russell  on  Crimes 
is  sufficient,  though  in  point  of  arrangement  it  is,  I  think, 
inferior  to  the  older  work  of  East.-  It  fills  212  pages  (640-852) 
of  the  first  volume  of  the  5th  edition. 

'  In  former  editions  this  Note  also  showu<l  in  tlie  words  of  tlie  uutlior 
"  that  all  the  points  decided  Ijy  tiie  various  cases  relating  to  any  form  of 
homicide  are  comprehended  in  what  1  have  siiid  on  the  suhject  in  the 
ililFerent  Articles  contained  in  Ciiapters  X\I.  XXIV.  l)oth  inclusive,  for 
the  various  decisions  in  question  range  over  all  the  sulijccts  treate<l  of  iu 
those  cliaptei-s  indiscriminately."  'I'his  was  done  hy  a  taJ)le  pr<iving  tiiat 
the  text  included  the  effect  of  all  the  cases  hearing  on  tlio  suhject  men- 
tioned in  Kussell  on  Crimes,  which  is  now  omitted  ;  but  if  any  doubt  is 
felt  as  to  tlie  fa<:t  of  such  incluHion,  reference  may  be  miule  to  pp.  385- 
\VM)  of  the  edition  of    1«M7. 

-  Two  mcxlem    decisions    on    the    subject    of    the    law   of    murder    of 


408  A    DIGEST   OF 


The  intricacy,  confusion,  and  uncertainty  of  tliis  brancli  of 
the  hiw  may  be  traced  to  the  statute  23  Hen.  ><,  c.  1.  s.  3, 
which  took  away  benefit  of  clergy  in  cases  of  "  wilful  murder  of 
malice  prepensed,"  and  which  thus  created  the  necessity  of 
preserving  the  expression  "  malice  prepense,"  and  at  the  same 
time  explaining  it  away.  Coke  endeavoured  to  effect  this  by 
the  doctrine  of  constructive  or  fictitious  malice,  of  which,  if 
not  the  author,  he  was  the  most  conspicuous  expounder,  and  he 
showed  in  his  exposition  of  it  that  utter  incapacity  for  anything 
like  correct  language  or  consecutive  thought  which  was  one  of 
his  great  characteristics.  Hale  amplifies  Coke,  Foster  rational- 
ises Hale,  and  the  judges  have,  in  an  unsystematic  occasional 
way,  worked  out,  bit  by  bit,  the  result  recorded  in  the  text. 

According  to  Coke,  malice  aforethought  is  the  criterion  by 
which  murder  is  distinguished  from  manslaughter.  Malice  may 
be  either  expressed  or  implied. 

^  "  Malice  prepensed  is  where  one  compasseth  to  kill,  wound, 
or  beat  another,  and  doth  it  sedato  animo." 

-  "  Malice  implied  is  in  three  cases  : — 

"  First,  in  respect  of  the  manner  of  the  deed,  as  if  one  killeth 
another  without  any  provocation  on  the  part  of  him  that  is  slain, 
the  law  implieth  malice. 

"  Second,  in  respect  of  the  person  slain.  As  if  a  magistrate 
or  known  officer,  or  any  other  that  hath  lawful  warrant,  and,  in 
doing  or  ofiering  to  do  his  office  or  to  execute  his  warrant,  is 
slain,  that  is  murder  by  malice  implied  in  law,  as  the  "  ^  person 
killed  is   "  the  minister  of  the  king." 


importance  were  given  before  1876,  when  the  5th  edition  of  Russell  was 
published,  but  not  having  been  reported  m  the  ordinary  law  reports  have 
not  been  noticed  in  that  edition.  They  are  the  cases  of  B.  v.  Allen  and 
Others,  the  Fenians,  tried  at  Manchester  for  the  murder  of  the  policeman 
Brett,  in  1867,  and  the  case  of  Ji.  v.  Dewiond  and  Other.i,  for  killing 
people  by  blowing  up  the  wall  of  Clerkenwell  Prison,  in  1868.  Neither 
of  these  cases  is  reported  in  the  common  reports.  I  have  quoted  what 
was  said  by  Lord  Chief  Justice  Cockburn  in  Dt'<viond's  Cast  in  Art.  244, 
Illust.  (8),  and  I  have  reprinted  in  the  Note  next  following,  from  tlie  Time-'i, 
the  correspondence  which  passed  between  the  counsel  for  tiie  prisoner  and 
Lord  (then  Mr.  Justice)  Blackburn,  in  K.  v.  Allen  and  Others.  Though 
not  in  form  it  constitutes  in  fact  an  argument  and  a  written  judgment  on 
a  very  important  point. 

1  3rd  Inst.  51. 

2  Ibid.  52. 

3  The  sentence  here  is  not  even  grammatical. 


THE   CRIMINAL    LAW  409 

"  Third,  in  respect  of  the  person  killing.  If  A  assaults  B  to  rob 
him,  and  in  resisting  A  killeth  B  [i.e.  if  B  resists  and  A  kills 
him),  this  is  murder  by  malice  implied,  albeit  he  "  (A)  "  never 
saw  or  knew  him  "  (B)  "  before." 

These  passages,  overloaded,  as  Coke's  manner  is,  with  a 
quantity  of  loose,  rambling  gossip,  form  the  essence  of  his 
account  of  murder. 

Hale,  who  arranges  his  matter  more  systematically  (though 
he  also  is  exceedingly  confused),  ^  adopts  Coke's  theory  in 
slightly  different  language.  "  Such  a  malice,  therefore,  that 
makes  the  killing  of  a  man  to  be  murder  is  of  two  kinds  : 
1,  Malice,  in  fact ;  or  2,  malice  in  law,  or  ex  prcesumptione  /egis." 

"  ^Malice  in  fact  is  a  deliberate  intention  of  doing  some 
corporal  harm  to  the  person  of  another. 

"  Malice  in  law,  or  presumed  malice,  is  of  several  kinds,  viz., 
1.  In  respect  of  the  manner  of  the  homicide,  when  without 
provocation.  2.  In  respect  of  the  person  killed,  viz.,  a  minister 
of  justice  in  the  execution  of  his  office.  3.  In  respect  of  the 
person  killing."  (As  to  whicli  he  -  afterwards  repeats  Coke  in 
an  abridged  form.) 

Manslaughter,  Coke  "^  tells  us  (in  the  middle  of  a  bewildering 
chapter  about  homicide  in  general),  is  homicide,  "  not  of  malice 
foiethought"  [but]  "upon  some  sudden  falling  out." 

Manslaughter  is  treated  by  Hale  in  a  manner  so  meagre 
and  yet  so  confused  that  no  notion  of  it  can  be  obtained  except 
by  reading  through  Chapters  XXXVIII.-XL.,  and  trying  to 
make  sense  of  them.  Hale's  whole  definition  of  the  offence 
is  in  these  words  :  "  Manslaughter,  or  simple  homicide,  is 
the  voluntary  killing  of  another  without  malice  express  or 
implied." 

These  definitions  are  open  to  the  remark  that  the  definition 
of  express  malice  includes  all  the  three  cases  of  implied  malice. 

Express  malice  means  the  deliberate  intentional  infliction  of 
l^odily  harm.  Malice  is  implied  if  the  act  is  done  without 
jtrovocation,  ur  in  resisting  an  officer  of  justice,  or  in  committiiig 
a  crime.  But  in  eacli  of  these  ca-ses  the  infiictioii  of  hodily 
harm  must  be  intentional,  and  there  is  no  reason  wliy  in  each 
of  them  it  should  not  be  deliberate. 

'    I  Mule,  I'.  C.  451. 
^    I'aye  4(1.'>. 
3  3nl  IiiHt.  55. 


410  A    DIGEST   OF 


Thus  the  distinction  between  express  and  implied  malice  is  a 
distinction  without  a  difference. 

It  has  involved  the  whole  subject  in  an  obscurity  from  which 
it  can  never  be  rescued  except  by  legislation,  though  I  think 
the  way  in  which  it  is  stated  in  the  text  is  correct,  and  may 
contribute  to  dispelling  the  confusion. 

Coke's  theory,  however,  and  that  of  Hale  may  be  exhibited  in 
the  following  propositions  :  — 

1.  Unlawful  killing  by  any  sort  of  premeditated  intentional 
personal  violence  is  murder. 

2.  Premeditation  is  to  be  presumed  if  the  violence  is  inten- 
tional and  unprovoked. 

3.  Unlawful  killing  by  unpremeditated  intentional  personal 
violence  is  murder  if  the  violence  is  employed  in  the  commission 
of  a  crime  or  in  resistance  to  lawful  authority. 

4.  Unlawful  killing  by  unpremeditated  intentional  violence 
provoked  is  manslaughter. 

These  four  propositions  may  be  also  stated  thus — so  as  to 
show  their  connection  : 

Unlawful  killing  by  any  sort  of  intentional  personal  violence 
is  murder,  unless  such  violence  is  used  "  upon  a  sudden  falling 
out,"  constituting  provocation  to  the  offender,  but  neither  the 
exercise  of  force  by  an  officer  of  justice  against  an  offender,  nor 
resistance  to  the  offender  by  a  person  against  whom  a  crime  is 
attempted,  constitutes  such  a  provocation,  and  killing  in  such 
cases  is  murder. 

That  this  proposition  is  the  equivalent  of  the  four  propo- 
sitions given  above  is  thus  proved  : 

^  All  intentional  violence  must  be  either  provoked  or  unpro- 
voked. 

All  intentional  violence  must  be  either  premeditated  or  un- 
premeditated. 

'   This  may  be  expressed  thus  in  a  tabular  form  : 


Intkntional 
Violence  mcst  be 

Premeditated.         or        Unpremeditated. 

Pbovoked   

or 

Murder  by  proposition  1 . 

Not  murder  by  proposi- 
tion 4,  except  in  cases 
under  proposition  3. 

Unprovoked 

Murder  by  proposition  1. 

Murder  by  proposition  2. 

THE    ClUMIXAL    LAW  411 

Killing  by  premeditated  intentional  personal  violence  is 
murder  by  (1). 

Killing  by  unpremeditated,  unprovoked  intentional  personal 
violence  is,  by  (2),  equivalent  to  killing  by  premeditated  inten- 
tional personal  violence,  and  is  therefore  murder.  Therefore  all 
killing  by  intentional  personal  violence  is  murder,  unless  such 
violence  is  both  provoked  and  unpremeditated. 

By  (3),  killing  by  intentional  personal  violence  unpremedi- 
tated, and  provoked  only  by  the  exercise  of  lawful  force  in  the 
ways  mentioned,  is  murder. 

Therefore  the  four  propositions  are  equivalent  to  the  one  last 
stated. 

The  legal  character  of  unintentional  killing  was  held  by  Cuke 
and  Hale  to  depend  on  the  character  of  the  act  by  which  death 
was  caused.  If  the  act  was  unlawful  the  offence  was  murder. 
If  lawful  the  death  was  killing  by  misadventure,  which,  in  Hale's 
time,  seems  to  have  covered,  at  all  events  in  part,  the  ground 
now  occupied  by  manslaughter  by  negligence.  As  to  this  Hale 
says  : — ^  "  Though  the  killing  of  another  /jer  infortunium  be  not 
in  truth  felony,  nor  subjects  the  party  to  a  capital  punishment, 
though  it  was  not  his  crime,  but  his  misfortune,  yet,  because  the 
King  hath  lost  his  subject,  and  that  men  may  he  more  careful,  he 
forfeits  his  goods,  and  is  not  presently  absolutely  discharged  of 
his  imprisonment,  but  bailed,"  ic. 

Upon  the  whole,  the  law  as  to  unlawful  homicide,  as  under- 
stood by  Coke  and  Hale  (the  effect  of  what  they  say  on  justifiable 
homicide  is  given  in  Cliapter  XXI.),  may  be  sunnned  up  as 
follows  : — 

Murder  is  unlawful  killing 

(a.)  by  any  intentional  personal  violence  not  inflicted  upon  a 
sudden  falling  <jut  ; 

{b.)  by  any  unintentional  pi-rsonal  violence  inflicted  in  an 
unlawful  act. 

Manslaughter  is  killing  liy  any  intentional  personal  violence 
inflicted  upon  a  sudden  falling  out,  provided  that  if  a  man 
attempting  to  commit  a  crime  upon  another  is  resisted,  and  kills 
the  jjerson  resisting,  or  if  a  man  resists  an  officer  of  justice  in 
the  exercise  of  his  duty,  and  kills  him,  the  offence  is  murder, 
and  not  manslaught(rr,  although  there  is  .something  whicli  may 
be  described  as  a  sudden  falling  out  between  the  parties. 

'   1  Uiile,  P.  C.  477. 


U2  A    DIGEST   OF 


The  following  theory  was  collateral  to  this  definition,  and  was 
supposed  to  be  its  basis  : — 

In  all  murder  there  is  malice  aforethought.  In  murder  as 
defined  in  (a.)  there  is  express  malice  aforethought  if  the 
circumstances  show  premeditation.  Thei'e  is  implied  malice 
aforethought  if  the  act  was  done  suddenly  and  without  provo- 
cation. 

In  murder  as  defined  in  (i.)  and  in  the  proviso  to  the 
definition  of  manslaughter  the  malice  is  always  implied. 

In  manslaughter  there  is  no  express  malice  aforethought,  and 
it  is  not  thought  proper  to  imply  it. 

These  explanations  show  the  true  nature  and  real  use  of  the 
expression  "  malice  aforethought  " — a  mere  popular  phrase  un- 
luckily introduced  into  an  Act  of  Parliament,  and  half  explained 
away  by  the  judges.  It  throws  no  light  whatever  on  the 
nature  of  the  crime  of  murder,  and  never  was  used  in  its  natural 
sense  of  premeditation.  On  the  other  hand,  it  served  as  a  sort 
of  standing  hint  at  the  kind  of  definition  which  was  wanted, 
for  it  was  equivalent  to  saying  that  there  were  two  degrees  of 
homicide — homicide  with  premeditation,  or  other  circumstances 
indicating  the  same  sort  of  malignity  ;  and  homicide  provoked 
by  a  sudden  quarrel,  or  accompanied  with  other  circumstances 
indicative  of  a  less  degree  of  malignity. 

Foster's  discourse  on  Homicide  is  little  more  than  an  amplifi- 
cation of  this  thesis.  He  goes  through  all  the  principal  cases 
which  have  been  decided  in  his  time,  and  compares  them  with 
the  theories  of  Hale  and  Coke,  drawing  the  conclusion  that 
malice  means  "  that  the  fact  has  been  attended  with  such 
circumstances  as  are  the  ordinary  symptoms  of  a  wicked, 
depraved,  and  malignant  spirit ;  a  heart  regardless  of  a  social 
duty,  and  fatally  bent  upon  mischief ; "  ^  a  principle  more  shortly 
expressed  by  Holt,  L.C.J.,  in  the  words,  "  He  that  doth  a  cruel 
act  voluntai'ily  doth  it  of  malice  prepensed."  - 

This  principle  gives  its  due  prominence  to  a  distinction  which 
appears  to  have  been  quite  unknown  to  Coke,  though  it  had 
attracted  the  attention  of  Hale,  and  is,  one  would  think, 
obvious    enough     in     itself — the    distinction,    namely,    between 

1  Foster,  256. 

2  R.  V.  Mawcjridge,  1706,  Kelyng  (3rd  ed.),  174.  This  judgment  con- 
tains an  admirable  summary  of  the  law  of  murder  and  manslaughter  as  it 
was  understood  in  the  begmning  of  the  eighteenth  century. 


TEE   CRIMINAL    LAW  113 

causing  death  unintentionally  by  an  act  likely  to  cause  death, 
and  causing  death  unintentionally  by  an  act  unlikely  to  cause 
death. 

According  to  Coke^  and  Hale"-  a  settled  design  to  beat  a  man 
makes  killing  him  by  such  beating  murder.  Hale,  however, 
seems  to  doubt  whether,  if  the  beating  was  moderate,  the  killing 
might  not  be  manslaughter,  and  mentions  '^  one  case  in  which 
a  soldier  having  killed  a  woman  who  abused  him  by  throwing  a 
broomstick  at  her,  the  judges  were  divided  on  the  question 
whether  the  act  was  murder  or  not,  and  recommended  a  pardon. 
This  view  of  the  matter  is  developed  at  length  by  Foster, 
who  discusses  many  cases  in  connection  with  it,  and  may  be 
regarded  as  having  laid  the  foundation  of  the  modern  doctrine 
on  the  subject,  which  has  since  his  time  been  recognised  in 
a  vast  number  of  cases,  that  the  general  presumption  of  malice 
which  arises  from  the  fact  of  killing  is  rebutted  if  it  appear 
that  the  means  used  were  not  likely  to  cause  death. 

Foster  to  some  extent  mitigates  the  barbarous  rule  laid  down 
by  Coke  as  to  unintentional  personal  violence,  by  confining  it 
to  cases  in  which  the  unintentional  violence  is  offered  in  the 
commission  of  a  felony.  This  rule  has  in  modern  times 
had  a  singular  and  unexpected  effect.  When  Coke  and  Hale 
wrote,  the  infliction  of  hardly  any  bodily  injury  *  short  of  a 
maim  was  a  felony.  Cutting  with  intent  to  disfigure  was  made 
felony  by  the  Coventry  Act ;  shooting  was  made  felony  by 
what  was  called  the  Black  Act  ;  and  by  later  statutes  it  has 
been  provided  that  the  intentional  infliction  of  grievous  bodily 
harm  in  any  way  whatever  shall  be  felony  (see  Article  257  (a.) ). 
The  result  is  that  Foster's  rule  as  to  the  intent  to  do  grievous, 
as  distinguished  from  the  minor,  bodily  harm  being  essential  to 
malice  aforethought  now  rests  on  statutory  authority,  for  no 
one  can  intentionally  inflict  on  another  grievous  bodily  harm 
without  committing  a  felony,  and  to  cause  death  by  a  felonious 
act  is  murder. 

The  law  as  to  homicide  by  omission  is  more  modern,  but 
closely  follows  the  lines  of  the  older  part  of  the  law.  The 
authorities  on  it  will  l)e  found  in  the  Illustrations. 

'   .3r<l  InHt.  f)!!. 
■>■   1  H.ile,  P.  C.  472. 
^   I  Httlc,  P.  C.  456. 

*  Cutting  out  the  tongue,  or  |)uttiiijj;  out  tlie  t'Vt'",  was  ffl<»iiy  liy  .'»  Hru. 
4.  c.  r,. 


414  A    DIGEST   OF 


NOTE  IX. 

(to  Articles  246  (c),  247.) 

The  following  correspondence  was  published  in  7'hfi  Times  of 
Nov.  21,  1867.  It  refers  to  the  case  of  Ji.  V.  Allen  and  Others, 
convicted  at  the  Manchester  Special  Commission  of  the  murder  of 
Brett,  a  police  officer,  whom  they  shot  in  an  attempt  to  rescue  a 
Fenian  prisoner  from  a  police  van  in  Manchester.  There  is  no 
legal  report  of  the  case,  so  far  as  I  know,  but,  as  will  be  seen, 
the  letter  of  the  prisoners'  counsel  and  the  reply  of  Lord  (then 
Mr.  Justice)  Blackburn  are  substantially  an  argument  and  a 
judgment  on  a  matter  of  very  great  importance.  I  have, 
therefore,  republished  them  from  The  Times,  with  Lord  Black- 
burn's permission. 

Statement    submitted    to  Mr.  Justice    Blackburn    and    Mr. 
Justice  Mellor. 

"  Regina  v.  Allen  and  Others. 

"  Upon  the  trial  of  Allen  and  Others  for  the  murder  of 
Sergeant  Brett,  two  points  of  law  arose,  under  the 
following  circumstances  : — 

"On  the  morning  of  the  11th  of  September  last,  two  men, 
who  turned  out  afterwards  to  be  Kelly  and  Deasy,  were  arrested 
by  a  Manchester  policeman,  as  he  alleged,  under  section  216  of 
the  Manchester  Police  Act  (7  &  8  Vict.  c.  40),  which  enacts 
that  it  shall  be  lawful  for  any  constable  belonging  to  the  police 
force  of  the  borough  to  take  into  custody,  without  a  warrant, 
all  loose,  idle,  or  disorderly  persons  whom  he  may  find  disturbing 
the  public  peace,  or  in  his  own  view  committing  an  offence 
against  this  Act,  or  whom  he  shall  have  good  cause  to  suspect 
of  having  committed,  or  being  about  to  commit,  any  felon}'-, 
misdemeanour,  or  breach  of  the  peace,  or  to  instigate  or  abet  any 
such  breach. 

"  The  two  men,  who  gave  the  names  of  White  and  Williams, 
were  taken  before  a  magistrate  on  the  11th,  and  remanded  until 
the  18th  by  a  warrant,  which  stated  the  charges  against  them 
to  be,  not  for  suspicion  of  felony,  on  which  charge  they  w^ere 
arrested,  but  for  '  felony,'  and  omitted  to  specify  what  felony 
or  other  offence  they  were  charged  with.  They  were  brought 
up  again  on  the  18th,  when  no  evidence  whatever  was  giveji 


THE   CRIMINAL   LAW  415 

upon  the  charge  on  which  they  were  alleged  to  have  been 
arrested,  but  an  inspector  of  detectives  from  London,  who  stated 
he  had  a  warrant  against  Kelly  for  treasonable  practices, 
alleged  to  have  been  committed  in  Ireland,  and  a  constable 
from  Ireland,  who  was  stated  to  have  a  similar  warrant  against 
Deasy,  appeared,  and  on  their  application,  without  the  produc- 
tion of  either  of  the  warrants,  which,  in  fact,  were  not  then 
backed  as  the  statute  required,  the  prisoners  were  again 
remanded  for  a  week. 

"  No  warrant  for  such  second  remand  was  produced  upon  the 
trial,  but  it  was  stated  that  a  warrant  had  been  signed,  a  copy 
of  that  signed  on  the  11th  inst.,  and  had  been  destroyed  by  the 
police  after  the  escape  of  the  prisoners. 

"  Kelly  and  Deasy  were  then  placed  in  the  prison  van,  for 
the  purpose  of  being  taken  to  prison,  and  on  the  way  the  van 
was  attacked,  the  prisoners  rescued,  and  Brett  killed. 

"The  two  questions  were:  1st,  whether  or  not  Kelly  and 
Deasy  were  in  legal  custody  ;  and  2nd,  if  they  were  not  in 
legal  custody,  whether  the  crime  of  killing  Brett,  in  the  act 
of  rescuing  them,  amounted  to  murder  or  manslaughter. 

"  As  to  the  first  point,  it  would  seem  (1st)  that  the  magistrate 
had  no  jurisdiction  to  commit  for  felony,  no  charge  of  felony 
having  been  made ;  and  (2nd)  that  the  magistrate  had  no 
jurisdiction  to  entertain  the  charge  of  treasonable  practices 
committed  in  Ireland,  or  to  remand  the  prisoners  upon  such  a 
charge.  By  the  11  &  12  Vict.  c.  42,  s.  22,  justices  are  em- 
powered to  take  the  examination  of  witnesses  against  persons 
who  are  brought  before  them  charged  with  an  offence  alleged  to 
have  been  committed  in  any  county  or  place  within  England 
and  Wales  wherein  they  have  not  jurisdiction.  By  sect.  2  of 
the  same  Act  they  are  empowered  to  issue  their  wairant  to 
apprehend  any  one  witliin  their  jurisdiction  charged  with 
having  committed  any  crime  or  offence  on  the  high  seas,  or  in 
any  creek,  harbour,  &c.,  or  any  'crimes  or  offences  committed 
on  lands  beyond  the  seas  for  which  an  indictment  may  legally 
1)0  preferred  in  any  place  within  England  or  Wales.'  By  sect. 
11,  where  an  English  warrant  is  backed  in  England,  the 
offender,  when  apprehended,  may  be  taken  before  the  justice 
who  issues  the  warrant,  or,  if  sf)  dirccU'd  by  (ho  justice  backing 
the  warrant,  before  such  last-mentioned  justice,  or  any  other 
justice  t)f  the  same  county  or  place  ;   but  by  sect.  12,  where  an 


416  A    DIGEST   OF 


Irish  warrant  is  backed  in  England,  the  ofiFender  must  be  taken 
before  tlie  justice  who  granted  the  warrant,  and  there  is  no 
power  to  take  liim  before  the  magistrate  who  has  backed  it. 
It  would  seem,  therefore,  that  in  this  case  the  proper  course 
would  have  been,  in  the  case  of  Deasy  at  least,  for  the  magis- 
trate to  have  backed  the  Irish  warrant,  and  for  the  prisoner 
to  have  been  taken,  under  the  authority  of  the  warrant  so 
backed,  to  Ireland,  and  that  the  magistrate  had  no  jurisdiction 
to  examine  any  witnesses  against  Deasy,  or  to  remand  him  upon 
the  charge  of  felony. 

"  Thirdly. — It  is  laid  down  in  Coke's  Second  Institute, 
p.  591,  when  speaking  of  prison  breaking,  that  a  mittimus  must 
*  contain  the  cause,  but  not  so  certainly  as  an  indictment  ought, 
and  yet  with  such  convenient  certainty  as  it  may  appear 
judicially  that  the  ofiPence  (prison  breaking),  tale  judicium 
reqtoirit  as  23ro  altd  j^Toditione,  viz.  in  personam  domini  regis,  &c., 
or  jyro  ftlonid,  viz.,  pro  morte  talis,  &c.,'  and  he  lays  it  down 
that  a  tnittimus  pro  felonid  generally  is  bad.  So  again.  Hale 
(P.  C.  vol.  ii.  p.  122)  says  that  a  mittimus  'must  contain  the 
certainty  of  the  cause,  and  therefore  if  it  be  for  felony  it  ought 
not  to  be  generally  pro  felonid,  but  it  must  contain  the  especial 
nature  of  the  felony  briefly,  as  for  felony  for  the  death  of  J.  S., 
or  for  burglary  in  breaking  the  house  of  J.  S.,  &c.,  and  the 
reason  is  because  it  may  appear  to  the  Judges  of  the  King's 
Bench  upon  an  habeas  coi-pus  whether  it  be  a  felony  or  not.' 
Hale,  however,  adds,  that  he  does  not  think  the  absence  of 
such  particularity  would  make  the  warrant  void.  It  is  worthy 
of  notice  that  in  the  forms  of  remand  given  by  Chitty  in  his 
Criminal  Law,  vol.  iv.  pp.  33,  116,  and  in  the  form  given  in  the 
11  Ar  12  Vict.  c.  42  (Q.  1),  the  felony  is  specifically  described. 

"  The  second  point,  which  appears  to  be  of  the  greater  import- 
ance, looking  at  the  actual  direction  to  the  jury,  and  to  the  fact 
that  they  were  not  asked  to  find  the  existence,  contents,  or  form 
of  the  warrant,  is  whether,  assuming  the  detention  of  one  or  both 
of  the  prisoners  to  have  been  illegal,  the  killing  of  Brett 
amounted  to  murder. 

"  The  first  case  on  the  subject  is  that  of  Sir  H.  Ferrers  (Cro. 
Car.  371),  who  was  arrested  for  debt,  and  thereupon  Nightingale, 
his  servant,  in  seeking  to  rescue  him,  as  was  pretended,  killed 
the  bailiff,  '  but  because  the  warrant  to  arrest  him  was  by  the 
name  of  Henry  Ferrers,  Knight,  and  he  never  was  a  knight,  it 


THE   CHIMIN  A  L   LAW  417 

was  held  by  all  the  Court  that  it  was  a  variance  in  an  essential 
part  of  the  name,  and  they  had  no  authority  by  that  warrant  to 
arrest  Sir  Henry  Ferrers,  Baronet,  so  it  is  an  ill  warrant,  and 
the  killing  of  an  officer  in  executing  that  warrant  cannot  be 
murder.'  This  case  is  also  reported  by  8ir  W.  Jones  (p.  346), 
where  it  is  said  to  have  been  held  not  to  be  murder  either  in 
the  servant  or  in  the  prisoner,  because  the  warrant  was  not 
good. 

"  The  next  case  is  that  of  Hopkin  Hugget,  which  was  tried  in 
1666,  and  is  best  reported  in  Kelyng  (p.  59).  In  that  case,  Hugget 
and  three  others  pursued  three  constables  who  had  impressed  a 
man,  and  demanded  to  see  their  warrant.  The  constables  showed  a 
paper  which  the  prisoner  said  was  no  warrant,  and  thereupon  they 
drew  their  swords,  and  Hugget  killed  one  of  the  constables. 
Of  the  twelve  judges,  eight  delivered  their  opinion  that  this 
was  no  murder,  but  only  manslaughter,  and  they  said  that  if  a 
man  be  unduly  arrested  or  restrained  of  his  liberty  by  three 
men,  although  he  be  quiet  himself,  and  do  not  endeavour  any 
rescue,  yet  this  is  a  provocation  to  all  other  men  of  England, 
not  only  his  friends,  but  strangers  also,  for  common  humanity's 
sake,  as  my  Lord  Bridgman  said,  to  endeavour  his  rescue ;  and 
if  in  such  endeavour  of  rescue  they  kill  any  one,  that  is  no 
murder,  but  only  manslaughter.  The  four  other  judges  held  it 
murder,  and  thought  the  case  in  question  to  be  much  the 
stronger  because  the  party  himself  who  was  impressed  was 
quiet  and  made  no  resistance,  and  they  who  meddled  were  no 
friends  of  his  or  acquaintances,  but  mere  strangers,  and  did 
not  so  much  as  desire  them  which  had  him  in  custody  to  let 
him  go.  Although  all  the  Judges  of  the  King's  Bench  thought 
it  murder,  they  conformed  to  the  opinion  of  the  other  eight, 
and  gave  judgment  of  imprisonment  for  eleven  months. 

"  In  Reg.  v.  Mamgridge,  which  was  tried  in  1707  (Kelyng, 
136),  the  Chief  Justice  alludes  to  Huggeis  Case  as  having  settled 
the  law  upon  the  point. 

"In  Toolpy\  Case.  (2  Lord  Raymond,  1296),  which  was  tried 
in  1710,  Ann  l)akin  was  in  custody  of  one  Bray,  when  the 
prisoners,  who  were  strangers  to  Dakin,  assaulted  Bray,  but 
withdrew.  They  afterwards  assaulted  Bray  again,  after  the 
woman  liad  been  locked  up,  and  killed  one  Dent,  whom  Bray 
haf]  called  to  his  assistance.  One  of  the  prisoners  gave  the 
Htroke,  the  two  others  were  aiding  and  abetting.     Seven  of  the 

E  E 


418  A   DIGEST  OF 


twelve  judges  held  tliis  to  be  manslaughter,  and  five  held  it  to 
be  murder,  one  of  the  five  thinking  that  the  constable  had 
authority.  Those  judges  who  held  the  offence  to  be  man- 
slaughter only  so  held  on  the  opinion  that  the  prisoners  had 
sufficient  provocation,  for  if,  say  they,  one  be  imprisoned  upon 
an  unlawful  authority,  it  is  a  sufficient  provocation  to  all 
people  out  of  compassion,  much  more  where  it  is  done  under  a 
colour  of  justice,  and  where  the  liberty  of  the  subject  is  invaded 
it  is  a  provocation  to  all  the  subjects  of  England. 

"In  Reg.  v.  Adey  (1  Leach,  206),  which  was  tried  in  1779,  a 
somewhat  similar  point  arose,  and  the  presiding  judge,  on  the 
authority  of  Tooleys  Case,  reserved  the  point  for  the  consideration 
of  the  twelve  judges.  The  prisoner  escaped  in  the  riots  of 
1780,  and  no  judgment  was  given,  but  Leach  says  that  it  was 
understood  the  judges  held  it  to  be  manslaughter  only. 

"Again,  in  Reg.  v.  Osmer  (5  East,  304),  argued  in  1804, 
Lord  Ellenborough,  C.J.,  says,  that  '  if  a  man  without  authority 
attempt  to  arrest  another  illegally,  it  is  a  breach  of  the  peace, 
and  any  other  person  may  lawfully  interfere  to  prevent  it, 
doing  no  more  than  is  necessary  for  that  purpose.' 

"In  Reg.  v.  Phelps  (C&v.  &  M.  180),  tried  in  1841,  a  policeman 
attempted  to  apprehend  a  man  on  suspicion  of  having  stolen 
growing  potatoes.  He  resisted,  and  some  persons  came  to  his 
aid  and  killed  one  Southwood,  whom  the  policeman  had  called 
to  his  assistance.  Upon  proof  of  these  facts,  Coltman,  J., 
directed  the  jury  that  as  the  policeman  had  no  right  to  apprehend 
the  man  the  ofience  of  those  who  killed  Southwood  was  man- 
slaughter only,  and  not  murder. 

"  These  appear  to  be  the  cases  bearing  most  closely  on  the 
subject,  but  turning  to  the  authority  of  text  writers,  and  the 
dicta  of  judges,  we  find  Hawkins,  in  his  Pleas  of  the  Crown 
(Book  I.  chap.  xxxi.  sec.  60),  stating  the  law  as  it  was  laid 
down  in  Hugget's  and  Tooley's  Cases,  and  adding  that  '  since  in 
the  event  it  appears  that  the  persons  slain  were  trespassers, 
covering  their  violence  with  a  show  of  justice,  he  who  kills 
them  is  indulged  by  the  law,  which  in  these  cases  judges  by 
the  event,  which  those  who  engage  in  such  unlawful  actions 
must  abide  at  their  peril.' 

"  Hale  (P.  C.  vol.  i.  p.  465)  also  cites  Hugget^s  Case,  and  appa- 
rently with  approval. 

"  On  the  other  hand,  Foster,  J.,  in  his  Discourse  upon  Crown 


THE   CRIMINAL    LAW  419 

Law  (p.  312),  while  he  appears  to  approve  of  the  law  as  laid 
down  in  Hngge(s  Case,  combats  the  doctrine  of  the  majority  of 
the  judges  in  Tooleifs  Case,  and  appears  to  doubt  the  propriety 
of  that  decision,  partly  upon  general  principles,  and  partly 
because  the  second  assault  on  the  constable  seemed  to  him  rather 
to  have  been  grounded  upon  resentment  or  a  principle  of  revenge 
for  what  had  before  passed,  than  upon  any  hope  or  endeavour  to 
assist  the  woman. 

"  It  is  these  observations  of  Foster,  J.,  which  Alderson,  B., 
appears  to  have  had  in  his  mind  when  he  is  reported  to  have 
said  in  Be</.  v.  Warner  (1  Moo.  C.  C.  385)  that  Tooleys  Case 
had  been  overruled.  Tooley's  Case  had,  in  fact,  no  bearing  upon 
Warner's  Case,  in  which  no  attempt  was  made  to  arrest  the 
prisoners  at  all,  and  Alderson,  B.,  does  not  refer  to  any  authority 
for  his  statement.  A  similar  remark  was  made  by  Pollock,  C.B., 
in  Reg.  v.  Davis  (Leigh  «fc  Cave,  C.  C.  71),  but  there  again  no 
authority  is  given. 

"  East,  in  his  Pleas  of  the  Crown,  vol.  i.  p.  325,  states  the 
question  with  the  arguments  on  either  side,  without  showing 
much  leaning  either  way  ;  and  so  does  Russell  (Criminal  Law, 
vol.  i.  p.  632),  although  his  editor,  Mr.  Greaves,  from  his  note 
(p.  848  of  the  4th  edition),  appears  to  have  been  convinced  by 
the  arguments  adduced  by  Foster. 

"  It  would  thus  seem  that  the  doctrine  laid  down  by  the 
majority  of  the  judges  in  the  cases  of  Ferrers,  Hugget,  and 
Tooley  has  been  acted  upon,  not  only  in  those  cases,  but  also  in 
R.  V.  Arhy  and  Reg.  v.  Phelps,  and  recognised  in  R.  v.  Maw- 
gridge  and  R.  v.  Osmer,  and  by  Hawkins  and  Hale. 

"  The  opposite  doctrine  is  supported  by  a  minority  of  the 
judges  in  I/ugget's  and  7'oofey's  Cases,  and  by  Foster,  J.,  and 
receives  .some  sort  of  sanction  from  the  observations  of  Alderson, 
B.,  and  Pollock,  C.B.,  if  they  can  be  considered  to  display  a 
sufficiently  accurate  knowledge  of  the  subject  to  entitle  them  to 
any  weight.  This  view  of  the  law,  however,  has  never  once 
been  acte<l  upon,  and  it  follows  that  if  the  prisoners  convicted 
at  Manchester  be  executed  without  any  discussion  of  the  law, 
they  will  be  [lut  to  death,  in  opposition  to  the  decided  cases  on 
the  subject,  upon  the  authcjrity  solely  of  extra-judicial  ai-gu- 
m<!nt8  and  dicta. 

"  In  some  oi  these  arguments  a  distinction  lias  hi'cn  taken 
b«'twe<'n  the  interference  of  a  fricuid  or  a  n-lative  and    that  of  a 

K    i:   2 


420  A    DIGEST   OF 


mere  stranger ;  but  this  distinction  dues  nut  appear  to  rest  on 
any  authority.  Hawkins,  in  liis  Pleas  of  the  Crown  (Book  I. 
ch.  xxxi.  ss.  56  and  57),  says  that  'if  a  man's  servant,  or  friend, 
or  even  a  stranger,  coming  suddenly  and,  seeing  him  fighting 
with  another,  side  with  him  and  kill  the  other — or,  seeing  his 
sword  broken,  send  him  another  wherewith  he  kills  the  other — 
he  is  guilty  of  manslaughter  only.'  Yet  in  this  very  case,  if 
the  person  killed  were  a  bailiff,  or  other  oflBcer  of  justice,  resisted 
by  the  master,  &c.,  in  the  due  execution  of  his  duty,  such  friend, 
or  servant,  etc.,  are  guilty  of  murder,  whether  they  knew  that 
the  person  slain  were  an  officer  or  not. 

"  For  these  and  other  reasons,  we  are  of  opinion  that  the 
points  raised  in  this  case  are  of  such  a  grave  and  serious 
character  as  to  demand  further  discussion  and  consideration, 
and  that  they  ought  only  to  be  decided  after  full  and  deliberate 
argument  before  the  Court  of  Criminal  Appeal. 

"  W.  DiGBY  Seymour,  Q.C. 

"  Michael  O'Brien,  S.L. 

"  Ernest  Jones. 

"James  Cottingham. 

"  Lewis  W.  Cave." 

Reply  of  Mr.  Justice  Blackburn. 

"  November  20,  1867. 
"  Dear  Mr.  Seymour, 

"  Mr.  Justice  Mellor  and  I  have  received  and  carefully 
perused  the  paper  signed  by  you,  my  brother  O'Brien,  and 
Mr.  Cave. 

"  It  contains  nothing  that  is  new  to  us,  but  it  puts  all  the 
authorities  in  the  light  most  favourable  for  your  clients,  and  I 
need  not  say  that  it  is  a  great  satisfaction  to  us  to  think  that 
nothing  has  been  overlooked  which  could  bear  on  so  grave  a 
question. 

"The  Legislature  have  by  the  11th  and  12th  of  Victoria, 
cap.  78,  cast  upon  the  presiding  Judges  the  very  disagreeable 
and  invidious  duty  of  determining  whether  their  own  view  of 
the  law  at  the  trial  is  or  is  not  so  questionable  as  to  justify  an 
appeal.  If  they  refuse  to  reserve  any  point  made,  it  is  still 
open  to  the  prisoners  to  appeal  to  the  equitable  consideration  of 
the  Sovereign,  but  no  appeal  lies  to  any  Court  of  law. 

"  In  the  present  case  my  brother  Mellor  and  I  considered  the 


THE   CRIMINAL   LAW  421 


points  raised   before  us  on  the  trial,  and  entertained  no  doubt 
tliat   the  direction  which  we  then  gave  was  strictly  according 
to   law.     We,  therefore,  reserved  no  question  for  the  Court  of 
Appeal  at  the   time,  but  simply  postponed  our  final  determina- 
tion on  the  subject  until  we  had   the  means  of  referring  to  the 
authorities  and  considering  the  case  more  at  leisure.     We  have 
now  considered  the  authorities,   and   have  consulted  the  other 
Judges,  not  with  a  view  of  dividing  our  responsibility,  nor  in 
order  to  obtain  a  judicial  opinion  from   them  which  they  could 
not  give  on  a  point  not  regularly  before  them,  but  because,  in  a 
case  so  serious,  we  were  very  anxious  to  have  the  best  advice 
and  assistance  that  we  could  obtain   for  our  guidance.      I  need 
not  say,  that  if  the  result  of  such  consultation  and  i-esearch  had 
been  to  lead  to  the  conclusion  tliut  there  was  doubt  enough  to 
justify  a  further  appeal,  it  would  have  relieved  us  from   a  most 
painful  responsibility.      I  regret  to  say  that  the  result  has  been 
to  satisfy  us  that  the  law  is  too  clear  to  justify  us  in  reserving 
any  point  for  the  consideration  of  the  Court  of  Criminal  Appeal. 
"  Entertaining  that  opinion,  we  have  officially  informed   the 
Secretary  of  State  for  the  Home  Department  that  there  will  be 
no  further  appeal  to  a  Court  of  law,  and  that  it  is  now  for  Her 
Majesty's  Government  alone  to  determine  what  shall  be  done 
with  the  convicts. 

"  This  decision  of  ours  is  final  ;  but,  as  a  satisfaction  to  you 
and  the  other  counsel  for  the  prisoners,  I  will  briefly  state  the 
reasons  which  have  induced  us  to  think  the  law  too  clear  for 
argument. 

"When  a  constable,  or  other  person  properly  authorised,  acts 
ill  the  execution  of  his  duty,  the  law  casts  a  peculiar  protection 
around  him,  and  consequently,  if  he  is  killed  in  the  execution  of 
his  duty,  it  is  in  general  murder,  even  though  there  be  such 
circumstances  <jf  hot  blood  and  want  of  premeditation  as  would 
in  an  (ordinary  case  reduce  the  crime  to  manslaughter.  But 
when  the  warrant  under  which  the  officer  is  acting  is  not 
sufficient  to  justify  him  in  arresting  or  detaining  prisoners,  or 
there  i.s  n«>  warrant  at  all,  he  is  not  entitled  to  this  peculiar 
protection,  and  cons(^quently  the  crime  may  be  reduced  to 
manslaughter  when  the  offence  is  committed  on  the  sudden,  and 
is  attended  by  circumstances  affording  reasonable  provocation. 

"  The;  cases  which  you  have  cited  an;  authorities  tliat  where 
th(!  affray  i.s  sudden,  and  nui  premeditated,  when,  as  Lord  Holt 


422  A    DIGEST   OF 

says  in  Ii.  v.  TooJey  (2  Lord  Raymond.  1300),  'it  is  acting 
without  any  precedent  malice  or  apparent  design  of  doing  hurt,' 
the  mere  fact  that  the  arrest  was  not  warranted  may  be  a 
sufficient  provocation. 

"  ]»ut  in  every  one  of  these  cases  the  affray  was  sudden  and 
unpremeditated. 

"In  the  present  case  the  form  of  warrants  adopted  may  be 
open  to  objection,  and  probably  might,  on  application  to  the 
Court  for  a  writ  of  habeas,  have  entitled  the  prisoners  to  be 
discharged  from  custody  ;  but  we  entirely  agree  with  the 
opinion  of  Lord  Hale  (2  Pleas  of  the  Crown)  that,  though 
defective  in  form,  the  gaoler  or  officer  is  bound  to  obey  a 
warrant  in  this  general  form,  and  consequently  is  protected  by 
it.  This  is  a  point  which,  had  the  affray  been  sudden  and 
unpremeditated,  we  probably  should  have  thought  it  right  to 
reserve. 

"  In  the  present  case,  however,  it  was  clearly  proved  that 
there  was  on  the  part  of  the  convicts  a  deliberate,  prearranged 
conspiracy  to  attack  the  police  with  firearms,  and  shoot  them,  if 
necessary,  for  the  purpose  of  rescuing  the  two  prisoners  in  their 
custody,  and  that  they  were  all  well  aware  that  the  police  were 
acting  in  obedience  to  the  commands  of  a  justice  of  the  peace, 
who  had  full  power  to  remand  the  prisoners  to  gaol  if  he  made 
a  proper  warrant  for  the  purpose.  It  was  further  manifest 
that  they  attempted  the  rescue  in  perfect  ignorance  of  any 
defect  in  the  warrant,  and  that  they  knew  well  that  if  there 
was  any  defect  in  the  warrant,  or  illegality  in  the  custody, 
the  courts  of  law  were  open  to  an  application  for  their 
release  from  custody.  We  think  it  would  be  monstrous  to 
suppose  that  under  such  circumstances,  even  if  the  justice  did 
make  an  informal  warrant,  it  could  justify  the  slaughter  of  an 
officer  in  charge  of  the  prisoners,  or  reduce  such  slaughter  to  the 
crime  of  manslaughter. 

"  To  cast  any  doubt  upon  this  subject  would,  we  think,  be 
productive  of  the  most  serious  mischief,  by  discouraging  the 
police  in  the  performance  of  their  duties,  and  by  encouraging 
the  lawless  in  a  disregard  of  the  authority  of  the  law. 

"  We  feel  bound,  under  these  circumstances,  to  decline  to 
take  a  course  which  might  lead  to  the  belief  that  we  considered 
the  matter  as  open  to  doubt. 

"  Colin  Blackburn." 


THE    CRIMINAL    LAW  423 


NOTE    X. 

(to  Chapter  XXXIII.) 

Libel. 

The  statement  of  the  law  of  libel  contained  in  this  chapter  is, 
I  believe,  complete,  though  it  is  very  short  in  comparison  to  the 
standard  works  on  the  subject. 

Folkard's  edition  of  Starkie  on  Slander  and  Libel  consists  of 
870  large  8vo  pages,  besides  an  appendix  of  statutes.  It  contains 
much  other  matter  besides  a  definition  of  the  crime  of  libel  ;  but 
that  definition,  and  the  explanation  of  the  offence  itself,  fill  more 
than  190  pages. 

The  greater  part  of  this  mass  of  matter  consists  of  illustrations, 
but  something  is  also  due  to  the  singularly  complicated  manner 
in  which  the  law  has  grown  up. 

The  word  "  malicious  "  in  reference  to  the  offence  of  libel  has 
been  elaborated  by  the  judges  into  a  whole  body  of  doctrine  on 
the  subject  in  the  same  sort  of  way  as  the  words  "  malice  afore- 
thought "  in  the  definition  of  murder. 

The  process  was  of  this  sort.  Malice  was  first  divided  into 
malice  in  fact  and  malice  in  law — malice  in  fact  being  personal 
spite,  and  malice  in  law  being  defined  to  be  "  a  wrongful  act 
done  intentionally,  and  without  just  cause  or  excuse." 

Inasmuch  as  the  publication  of  a  libel  must  always  be  inten- 
tional, and  inasmuch  as  the  Courts  held  that  to  publish  defama- 
tory matter  of  another  was,  generally  speaking,  a  wrongful  act, 
the  result  of  this  was  that  every  publication  of  defamatory 
matter  was  a  crime,  unless  there  was  some  just  cause  or  excuse 
for  it.  What  amounts  to  a  "just  cause  or  excuse"  was  decided 
In'  a  multitude  of  cases.  The  phraseology  employed  in  their 
decision  has  been  as  follows.  Defamatory  matter  wliich  it  was 
considered  lawful  to  publish  has  been  described  as  a  "  privileged 
communication."  This  "  privilege "  has  been  regarded  as  re- 
l)uttirig  the  j)resuniption  of  malice  arising  from  the  fa(;t  of  pub- 
lication ;  and  it  has  furtlicr  been  divided  into  al)solut('  privilege 
and  qualified  privilege — absolute  if  it  justifies  the  j)ublication, 
what<;v<'r  may  be  the  state  of  mind  of  the  publisher  ;  (jualified  if 
it  justifies  sudi  pulilication  only  under  particular  circumstances, 
as,  f«*r  instance,  wlicn    the   |iul>li.slier   in  good    f;iitli    believes    (lie 


424  A    DIGEST   OF 


defamatory  matter  to  be  true,   when    the   defamatory   matter 
actually  iis  true,  and  its  publication  is  for  the  public  good,  ifec. 

The  law  thus  falls  into  the  singular  condition  of  a  see-saw 
between  two  legal  fictions,  Implied  Malice  on  the  one  hand,  and 
Privilege  absolute  or  qualified  on  the  other. 

I  will  give  a  single  instance  of  the  intricacy  to  which  this 
leads.  A  writes  of  B  to  C,  "  B  is  a  thief."  Here  the  law 
implies  malice  from  the  words  used.  It  appears  that  B  was  a 
servant,  who  had  been  employed  by  A,  and  was  trying  to  get 
into  C's  employment,  and  that  A's  letter  was  in  answer  to 
an  inquiry  from  C.  Here  the  occasion  of  publication  raises  a 
qualified  privilege  in  A — viz.,  the  privilege  of  saying  to  C 
that  B  is  a  thief,  qualified  by  the  condition  that  A  really  thinks 
that  he  is  one,  and  the  qualified  privilege  rebuts  the  implied 
malice  presumed  from  the  fact  of  publishing  the  defamatory 
matter.  B,  however,  proves  not  only  that  he  was  not  a  thief, 
but  that  A  must  have  known  it  when  he  said  that  he  was. 
This  raises  a  presumption  of  express  malice,  or  malice  in  fact,  in 
A,  and  proof  of  the  existence  of  express  malice  overturns  the 
presumption  against  implied  malice  raised  by  the  proof  of  the 
qualified  privilege. 

This  machinery  of  express  and  implied  malice  and  qualified 
and  absolute  privilege  is  only  a  roundabout  and  intricate  way 
of  saying  that  as  a  general  rule  it  is  a  crime  to  publish  de- 
famatory matter ;  that  there  are,  however,  certain  exceptions  to 
that  rule  by  virtue  of  which  it  is  not  a  crime  to  defame  a  man — 
(a.)  If  the  defamatory  matter  is  true,  and  its  publication  is  for 
the  public  good. 

(6.)   Although  the  defamatory  matter  is  false, 

(i.)  If  the  libeller  in  good  faith  believes  it  to  be  true,  and 

publishes  it  for  certain  specified  reasons, 
(ii.)  Although  he  knows  it  to  be  false,  if  he  publishes  it  in 
a  particular  character. 
By  working  out  this  scheme,    and  stating  in  general  terms 
that  the  publication  of  a  libel  is  always  malicious  unless  it  falls 
within  one   or  more  of   the   specified   exceptions,    the  intricate 
fictions   about    malice    in   law    and  in    fact,    and   absolute  and 
qualified  privilege,  may  be  dispensed  with.     They    are    merely 
the    scaffolding    behind    which    the   house  was  built,    and  now 
that    the   house    is    convenient   and  proximately    complete,   the 
scaffold  may  be  taken  down. 


THE    CRIMINAL    LAW  425 


NOTE    XI. 

(to  Article  306,  on  Possession  in  relation  to  the  Law  of 

Larceny.) 

I  do  not  think  it  would  be  possible  to  assign  to  the  expressions 
"possession,"  "actual  possession,"  "constructive  possession," 
"  legal  possession,"  senses  which  would  explain  and  reconcile  all 
the  passages  in  which  these  phrases  occur  in  works  of  authority. 
Some  of  them  indeed  are  absolutely  contradictoxy.  Thus  it  is 
said  that  the  taking  in  larceny  must  be  a  taking  out  of  the  pos- 
session of  the  owner.  It  is  also  said  that  the  owner  retains  the 
legal  possession  notwithstanding  the  larceny.  If  both  of  these 
propositions  were  true,  it  would  follow  that  larceny  could  never 
be  committed  at  all.  Again,  we  are  told  on  the  other  hand 
that  the  taking  in  larceny  must  be  a  taking  out  of  the  posses- 
sion of  the  owner,  the  inference  from  which  would  naturally  be 
that  when  a  thing  is  out  of  the  owner's  possession  it  cannot  be 
stolen.  We  are  then  told,  in  order  to  avoid  this  conclusion, 
that  a  thing  is  always  in  its  owner's  possession  ;  so  that  a  box 
of  plate  at  the  bottom  of  the  Thames,  things  of  the  existence 
of  which  the  owner  is  not  aware,  as  money  vested  in  him  as 
executor,  and  which  without  his  knowledge  is  in  the  actual 
custody  of  another  person,^  or  a  dead  rabbit  in  his  wood,  are  all 
in  the  owner's  possession  and  capable  of  being  taken  out  of  it. 
This  Way  of  stating  the  matter  makes  tlie  assertion  that  the 
taking  in  larceny  must  be  a  taking  out  of  the  owner's  possession 
insignificant.  If,  from  the  nature  of  the  case,  every  taking  must 
be  a  taking  out  of  the  possession  of  the  owner,  it  is  impossible 
to  see  how  the  takings  which  do,  differ  from  those  which  do  not, 
constitute  larceny.  All  men  being  mortal,  it  is  useless  to  define 
an  Englishman  as  a  mortal  man  living  in  England.  However, 
though  it  is  impossible  either  to  justify  the  manner  in  which 
the  word  "possession"  is  used,  or  to  free  it  entirely  from  the 
fictions  with  which  it  has  been  connected,  it  is,  T  think,  not 
iiiipossibN;  to  define   it   in   siii'li    a    manner  as  to   cxjirt'ss   all    tin* 

'  \  jjut  !MM)  guiiieuH  in  a  Kccrct  (huwer  in  a  Ijuieau  and  died.  IJ,  her 
11  und  executor,  lent  tlie  bureau  to  IiIh  Ijiiitlier  (',  wlio  took  it  to  India, 
kept  it  there  for  Hcveral  yearn,  and  l)rouglit  it  baek.  H  tlien  sohl  it  to 
I),  who  gave  it  tf>  K  t<»  repair-,  who  fouml  the  money.  ThiH  waH  hehl 
to  be  Hueli  a  taking  by  K  out  of  tlie  j)OHHCHHion  of  A  aH  to  conHtitule 
larceny.      Cartwrigfit  v.  drtiu,  l80.'{,  8  VeH.  4U5. 


426  A   DIGEST   OF 


distinctions  whicli  it  is  intended  to  mark  in  language  differing 
very  slightly,  if  at  all,  from  that  which  has  generally  been  used 
upon  the  subject. 

As  I  have  shown  in  the  Articles  on  theft,  and  in  the  Notes 
upon  them,  there  are  five  different  ways  in  which  theft  can  be 
committed,  viz.  : — 

1.  By  taking  and  carrying  away  goods  which  do  not  belong 
to  the  thief  from  any  place  where  they  happen  to  be. 

2.  By  converting  property  entrusted  by  the  owner  to  a 
servant. 

3.  By  obtaining  the  possession  of  property  (as  distinguished 
from  the  right  of  property)  from  the  owner  by  fraud  with  intent 
to  convert  it. 

4.  By  converting  property  given  by  the  owner  to  the  thief 
under  a  mistake. 

5.  By  converting  property  bailed  to  the  thief. 

It  will  be  found  upon  consideration  that  the  distinctions 
between  these  cases  all  arise  out  of  the  doctrine  of  possession,  but 
it  is,  I  think,  less  generally  perceived  that  the  important  point 
is  not  the  taking  out  of  the  possession  of  the  owner,  but  the 
taking  into  the  possession  of  the  thief.  The  five  cases  in  question 
may  be  thus  arranged  : — 

In  No.  1  (common  larceny)  the  thief  has  neither  the  possession 
nor  the  custody  of  the  stolen  property  at  the  time  when  the 
theft  is  committed,  and  it  is  immaterial  whether  the  owner  has 
it  or  not. 

In  No.  2  (larceny  by  a  servant)  the  thief  at  the  time  of  his 
offence  may  have  either  the  custody  or  the  possession.  If  he  has 
the  custody  his  offence  is  theft.  If  he  has  the  possession  his 
offence  is  embezzlement. 

In  No.  3  (larceny  by  trick)  the  thief  obtains  the  possession  by 
a  mistake  caused  by  his  own  fraud. 

In  No.  4  (larceny  by  taking  advantage  of  a  mistake)  the  thief 
receives  the  possession  by  a  mistake  not  caused  by  his  own 
fraud. 

In  No.  5  (larceny  by  a  bailee)  the  thief  receives  the  possession 
under  a  contract  of  bailment. 

Besides  this  view  of  the  subject,  tlie  doctrine  of  possession  is 
important  in  relation  to  procedure,  and  in  that  case  the  matter  to 
be  considered  is  not  the  possession  of  the  thief  but  the  possession 
of  the  owner.      It  is  necessary  in  indictments  for  theft  that  the 


THE    CRIMINAL    LAW  427 

ownership  of  the  stolen  property  should  be  correctly  stated,  and 
as  possession  constitutes  special  ownership  (at  all  events,  as 
against  a  thief)  it  is  important,  with  a  view  to  this  subject,  to 
understand  what  possession  implies. 

Passing  from  the  law  upon  this  subject,  let  us  examine  the 
facts  to  which  the  law  applies — the  different  relations  which,  as 
a  fact,  exist  between  men  and  things — in  reference  to  the  common 
use  of  language. 

The  most  obvious  case  of  possession  is  that  of  a  person  who 
holds  something  in  his  hand.  But  it  must  appear  upon  the 
slightest  consideration  that  neither  this  nor  any  other  physical 
act  whatever  can  be  accepted  as  more  than  an  outward  symbol 
of  the  state  of  things  which  the  word  denotes.  Unless  the  article 
possessed  is  very  small,  part  of  it  only  can  be  held  in  the  hand, 
trodden  on  by  the  foot,  or  so  dealt  with  by  any  other  part  of  the 
possessor's  body  as  to  exclude  a  similar  dealing  with  it  by  others. 
It  would,  however,  I  think,  be  felt  by  every  one  that  neither 
actual  bodily  contact  with  an  object,  nor  even  exclusive  bodily 
contact  with  it,  was  essential  to  what,  in  the  common  use  of 
language,  is  meant  by  possession.  No  one  would  think  of  using 
different  words  to  express  the  relation  of  a  man  to  a  coin  clenched 
in  his  fist,  to  a  pocket-book  in  his  pocket,  to  a  portmanteau  of 
which  he  carried  one  end  and  a  railway  porter  the  other,  to  a 
carriage  in  which  he  was  seated  whilst  his  servant  was  drivino' 
it,  to  a  book  on  the  shelves  of  his  library,  and  to  the  plate  in  his 
pantr}'  under  the  charge  of  his  butler.  He  would,  in  the  common 
use  of  language,  be  said  to  be  in  possession  of  all  these  things, 
and  no  one  would  feel  any  difficulty  in  perceiving  the  correctness 
of  the  expre.ssion  even  if  it  were  added  that  he  was  not  the 
owner  of  any  one  of  them,  that  some  had  been  lent,  and 
others  let  to  hire  to  him.  On  the  other  hand,  any  one  l)ut 
a  lawyer  would  be  surprised  at  the  assertion  that  a  man,  whcthci- 
the  owner  or  not,  was  in  possession  of  a  watch  which  ho  had 
dnjppod  into  the  Thames,  of  sheep  which  had  been  stolen  from 
his  field  and  driven  to  a  distance  by  the  thief,  of  a  dead  grouse 
which,  having  been  wounded  at  a  distance  from  his  moor,  had 
managed  to  reach  it  and  di<;  there  without  his  knowledge  or  that 
of  any  other  person. 

The  common  feature  of  all  the  ca.ses  to  whiih  tlie  word 
"  possession  "  wc^uld  «»bviously  be  applicable  is  easily  recogni.sed. 


428  A    DIGEST   OF 


It  is  to  be  found  in  tlie  fact  that  the  person  called  the  possessor 
has  in  each  instance  the  power  to  act  as  if  he  were  the  owner 
of  the  thing  possessed,  whether  he  actually  is  the  owner  or  not. 
Several  of  the  illustrations  given,  however,  show  that  though 
this  is  one  of  the  things  which  the  word  conveys,  it  is  not  the 
only  thing  conveyed  by  it.  The  butler  in  charge  of  the  plate, 
the  porter  helping  to  carry  the  portmanteau,  the  coachman  who 
is  driving  the  coach,  have  the  physical  power  of  acting  as  the 
owner  of  those  things  as  much  as  their  master  or  employer. 
Indeed,  in  two  of  the  three  cases  their  physical  control  over  the 
object  is  more  direct  than  his.  The  difference  is  that  the 
circumstances  are  such  as  to  raise  a  presumption  that  their 
intention  is  to  act  under  the  orders  of  their  superior,  and  that 
he  (at  least  for  the  present)  has  no  definite  superior  whose  orders 
he  intends  to  obey.  Take,  for  instance,  the  case  of  a  dinner 
party  :  there  is  no  visible  difference  between  the  master  of  the 
house  and  his  guests ;  each  uses  the  article  which  he  requires 
for  the  moment,  and  they  are,  from  time  to  time,  removed  from 
place  to  place  by  the  servants ;  as,  however,  the  master  retains 
throughout  not  merely  the  legal  right  to  dispose  of  them 
absolutely,  but  the  immediate  means  of  enforcing  that  right 
if  from  any  strange  circumstance  it  should  become  necessary  to 
do  so,  the  assertion  that  the  plate  is  in  his  possession,  and  that 
his  guests  and  servants  have  merely  a  permission  to  use  it  under 
his  control,  has  a  plain  meaning :  nor  would  that  meaning  be 
altered  or  obscured  if  the  fact  were  added  that  the  plate  did  not 
belong  to  the  master  of  the  house,  but  was  hired  by  him  for  the 
occasion.  Indeed,  if  he  had  stolen  the  plate,  or  received  it  know- 
ing it  to  be  stolen,  the  fact  denoted  by  the  word  "  possession  " 
would  remain.  These  illustrations,  which  might  be  multiplied 
to  an}"-  extent,  appear  to  me  to  show  clearly  that  possession 
means,  in  the  common  use  of  language,  a  power  to  act  as  the 
owner  of  a  thing,  coupled  with  a  presumable  intention  to  do  so 
in  case  of  need  ;  and  that  the  custody  of  a  servant,  or  person 
in  a  similar  position,  does  not  exclude  the  possession  by  another, 
but  differs  from  it  in  the  presumable  intention  of  the  custodian 
to  act  under  the  orders  of  the  possessor  with  reference  to  the 
thing  possessed,  and  to  give  it  up  to  him  if  he  requires  it.  Thus 
far,  I  think,  my  definitions  correspond  with  the  common  use 
of   language,  though  of    course  popular   language    upon   such   a 


THE    CRIMINAL    LAW  429 

subject    is  not,   nor    is    there    any  reason    why   it    should    be, 
minutely  exact. ^ 

I  will  now  compare  it  with  the  way  in  which  the  word  is  used 
by  legal  authorities.  I  know  of  no  set  dissertations  on  the  subject 
of  the  use  of  the  word  "  possession  "  in  English  law  like  those 
which  are  to  be  found  in  abundance  upon  the  corresponding  word 
in  Roman  law.  It  would  be  an  endless  and  a  useless  labour  to 
go  through  the  cases  in  which  the  word  has  been  used — endless 
on  account  of  their  great  number,  useless  because  it  is  the  charac- 
teristic of  English  judges  to  care  little  for  technical  niceties  of 
language  in  comparison  with  substantial  clearness  of  statement  in 
reference  to  the  actual  matter  in  hand.  Upon  such  a  matter  as 
this,  accordingly,  it  is  better  to  consider  the  different  authorities 
in  groups  than  individually. 

Possession  (in  reference  to  the  subject  of  theft)  is  usually  divided 
into  two  branches — actual  possession  and  constructive  possession. 

It  seems  to  have  been  pretty  generally  assumed  that  the  words 
"  actual  possession  "  were  sufficiently  plain  for  practical  purposes 
without  further  explanation ;  but  it  would  be  easy  to  show,  by  a 
multitude  of  cases,  that  actual  possession  differs  from  possession  as 
I  have  defined  it  only  in  one  point.  It  is  usual  to  say  that  a  thing 
in  the  possession  of  a  servant  on  account  of  his  master  is  only  con- 
structively in  the  possession  of  the  master.  But  the  expression 
"  constructive  possession  "  has  another  meaning  besides  this.  As 
it  was  considered  necessary  that  a  thing  stolen  should  be  taken  out 
of  the  possession  of  the  owner,  and  as  in  very  many  instances  goods 
are  stolen  which  are  not  in  any  natural  sense  in  the  possession  of 
any  one  whatever,  it  has  become  a  maxim  that  goods  are  always 
in  the  possession  of  the  owner ;  if  not  in  his  actual,  then  in  his 
constructive  possession,  or,  as  it  is  sometimes  called,  in  his  legal 
possession. 

Thus,  constructive  possession  means  : — 

1.  The  possession  of  goods  in  tlie  custody  of  a  servant  on 
account  of  his  master,  and 

2.  Tlif!  purely  fictitious  possession  which   the  owner  of  goods 

'  ThiH  view  was  BUggoHted  ))y  <i  Htiuly  (if  Suvigiiy'.s  Reclit  ilew  Ik'sitzes, 
which,  however,  cIceIh  witli  many  tf)pi<;H  tf)  which  iiotiiiiig  in  Knglish  law 
corre8|K)nilM.  Mr.  (ieorge  Long'w  article  nn  "  I'osKeHHio  '"  in  tlu;  Dictionary 
f)f  (Ireek  and  lioniun  Antif|uiticH  containH  tlic  Hiili.stancc  of  Savignj*  in  a 
very  cc»nvenient  form.  Mr.  Hunter'H  liomun  Law,  pp.  1}).')  liliii,  may 
alHo  l»e  <;onHuIte(l. 


430  A    DIGEST   OF 


is  supposed  to  have,  although  they  are  in  reality  possessed  by  no 
one  at  all. 

The  phrase  thus  appears  to  me  to  be  objectionable,  not  only 
because  it  is  ambiguous,  but  because,  in  the  first  of  its  two  senses, 
it  conceals  a  truth,  whilst  in  the  second  it  needlessly  conveys  a 
false  impression.  The  truth  concealed  is  that  a  man  may  have,  and 
may  intend  to  use,  the  power  implied  in  the  word  "  possession," 
although  he  acts  through  a  servant.  The  false  impression  con- 
veyed is  that  things  cannot  be  out  of  possession,  or  that  if  they 
are  they  cannot  be  stolen. 

I  avoid  this  by  abstaining  altogether  from  the  use  of  the  ex- 
pression "constructive  possession."  In  "possession"  I  include 
that  which  has  to  be  exercised  through  a  servant,  and  my 
language  implies  that  a  person  may  commit  theft  on  objects 
which  are  not  in  the  possession  of  any  one  at  the  time  of  the 
theft.  The  existing  law  may  by  these  means  be  expressed  in 
well-recognised  and  established  phraseology,  without  any  resort 
to  legal  fictions. 

The  point  upon  which  the  most  subtle  questions  as  to 
possession  arise  is  the  distinction  between  theft  and  embezzle- 
ment— a  perfectly  useless  distinction,  no  doubt,  and  one  which 
the  Legislature  has  on  two  separate  occasions  vainly  tried  to 
abolish.  So  long,  however,  as  it  is  allowed  to  exist,  it  is 
necessary  to  understand  it. 

I  have  already  explained  how  a  man  may  retain  the  possession 
of  a  thing  of  which  he  gives  his  servant  the  custody.  He  retains 
a  power  over  the  thing  which  is  not  the  less  real  or  effective 
because  he  has  to  exercise  it  through  the  will  of  another  person, 
who  has  undertaken  to  be  the  instrument  of  his  will.  Suppose, 
however,  that  instead  of  the  master  having  given  his  horse  to 
his  groom,  or  his  plate  to  his  butler,  a  horsedealer  has  delivered 
the  horse  to  the  groom,  or  a  silversmith  has  delivered  plate  to 
the  butler  for  his  master  :  I  should  have  thought  that  there  was 
no  real  difference  between  these  cases ;  that  inasmuch  as  the 
servant  in  each  case  was  acting  for  the  master  in  the  discharge 
of  a  duty  towards  him,  and  under  an  agreement  to  execute  his 
orders,  the  master  would  come  into  possession  of  the  horse  or 
the  plate  as  soon  as  his  servant  received  it  from  the  dealer  or 
the  silversmith,  just  as  he  remains  in  possession  of  the  horse  or 
the  plate  when  he  gives  the  custody  of  it  to  his  groom  or  his 
butler.      I    should    also    have    thought    that    the    servant    who 


THE    GRIM IX AL    LAW  431 

appropriated  his  master's  property  to  his  own  use,  after  receiving 
it  from  another  on  his  master's  account,  was  for  all  purposes  in 
precisely  the  same  position  as  the  servant  who  did  the  same 
thing  after  receiving  it  from  his  master.  The  Courts,  however, 
decided  otherwise.  They  have  held  on  many  occasions  that, 
though  the  master's  possession  continues  when  he  gives  the 
custody  of  a  thing  to  his  servant,  it  does  not  begin  when  the 
servant  receives  anything  on  account  of  his  master ;  on  the 
contrary,  the  servant  has  the  possession,  as  distinguished  from 
the  custody,  until  he  does  some  act  which  vests  the  possession 
in  his  master,  though  it  may  leave  the  custody  in  himself.  If 
during  that  interval  he  appropriates  the  thing,  he  commits 
embezzlement.  If  afterwards,  theft.  The  most  pointed  illus- 
tration of  this  singular  doctrine  which  can  be  given  occurs  in 
the  case  of  R.  v.  Reed,  1854,  D.  and  P.  256.  B  sent  A,  his 
servant,  with  a  cart  to  fetch  coals.  A  put  the  coals  into  the 
cart,  and  on  the  way  home  sold  some  of  them  and  kept  the 
money.  A  was  convicted  of  larceny,  and  the  question  was 
whether  he  ought  to  have  been  convicted  of  embezzlement.  It 
was  held  that  the  conviction  was  right,  because,  though  A  had 
the  custody  of  the  cart  all  along,  yet  the  possession  of  it  and  its 
contents  was  in  B,  and  though  A  had  the  possession  of  the 
coals  whilst  he  was  carrying  them  to  the  cart,  that  possession 
was  reduced  to  a  mere  custody  when  they  were  deposited  in  the 
cart,  so  that  A's  offence  was  larceny,  and  not  embezzlement, 
which  it  would  have  been  if  he  had  misappropriated  the  coals 
before  they  were  put  into  the  cart. 

These  explanations  will,  I  hope,  render  the  Article  in  the 
Digest  intelligible.  In  order  to  justify  it  legally,  it  is  necessary 
to  state  the  manner  in  which  I  arrived  at  it.  I  examined  a  large 
number  of  cases,  of  which  I  have  put  eleven  in  the  form  of 
Illustrations  to  the  article.  In  some  of  these  cases  it  was 
decided  that  the  offence  was  theft ;  in  others,  that  the  offence 
was  embezzlement.  I  have  assumed  (as  I  was  entitled  to  do,  as 
appears  from  the  explanations  given  above)  that  whenever  an 
offence  was  held  to  br;  theft  the  property  stolen  was  in  the 
pos.session  of  the  owner  or  master,  although  it  might  bo  in  the 
custody  of  a  guest  or  servant ;  and  that  whenever  the  offence 
was  held  to  be  embezzlement  the  property  embezzled  was  in  the 
pf)SHeH.sion,  as  distinguished  from  tin*  custody,  of  the  servant. 
I  might  ca-sily  have  enlarged  tli»'  nunibor  of  I  Ihi-^trat  ions  to  any 


432  A    DIGEST   OF   THE    CRIMINAL    LAW 

conceivable  extent ;  but  if  those  given  are  not  enough  to  make 
the  matter  plain,  I  despair  of  making  it  plain  or  understanding 
it,  and  I  do  not  wish  to  make  it  darker  than  it  is.  It  is,  per- 
haps, just  worth  while  to  add  once  more  that  I  am  in  this  work 
merely  stating,  and  not  attempting  to  justify,  the  law.  The 
technicalities  on  this  subject  appear  to  me  to  be  altogether 
superfluous,  and  I  think  they  might  be  easily  dispensed  with 
by  re-defining  the  offence  of  theft,  or  even  by  removing  the 
distinction  between  theft,  embezzlement,  and  false  pretences. 


TABLE    OF    IJDICTABLE    OFFEXCES 


433 


C8    03 


IC    Lt    O    X 

55  <M  !>J  OJ 


o  o 

00  CO 


o  o  o  o 


:2;tH 


12;^ 


^     52;     12; 


^1 


X     X     X      K 


6^  S^  <5  <!5 


pt(  ^ 


fHp^ 


ki 

-     OD 

0 

m 

0 

:               s 

»-" 

« 

tc 

(N 

:              0 

C>) 

fr. 

s 

•  5° 

*s 

:; 

;5  0 

'  ^ 

— 

"■ 

0    SD 

r- 

c^ 

■J- 

5- 

'Ji  m 

03 

"              S^ 

Cj 

C    P 

m 

— 

*-' 

fed. 

flH 

>—\ 

hH 

C^H 

P^ 

S     <: 


o  s 


^    3 


^  S 


to  o- 


i  'u  "*-  "^  "~        >   P   5 


X  •:-    o 

.fir 

CO    U    U 

1  c  5  «  |- 


I»         '^ 


.=  o 


c   _   o  >> 


0    =      -T!  J£  ■" 


o  'Z 


-    n    a)  t! 


O  -3    - 


o    r 


-     o  -^'    - 

M  |.i  J^l 

S    cS    X  X    J<    t£ 


F    K 


434 


TA/JLl-J    OF    IXDlCTAliLE    OFFENCES 


-:       X 

I'i 

1  ^ 

'f:  r:  ;d 

D          CO 

w 

* 

0          CO 

cc 

)^, 


o  o  o 


Odd 


O     D 


!^ 


f?;     Ji^ 


o   aj  c 


o  2  £ 


i^ 


c  o 
P-i  Ph 


o 


D 


cz:  o:      t:      o;      c^      x 

fi;  Ph"     fi4     fin     A^     e-' 


-*       ic  CO  t^       00       o 


03  m    in    ai         co  cc 


fe    fL<   (=<  fq  ^•'^''^ 


|i,pM        fi4 


P^^Pb 


.£•.5 
-S  '3 


&  o 


o 

£  sio 

&  c 

o 

>>'d 

rt 

c  rs 

C^ 

ri   5 

^  £ 

«*i 

^-    o 

V>  ii 

"o 

^  2 

-fi       o  :  D  o 

5P      &  c  ?    r 

•-3       05  D  ;i5  °* 

re  3  ii  -^  o  S 

t'  2  ^  o  J  >, 

o    «  ?  «      , 

"  "  '3  •§  I  -  ft.^ 


(C 


D 


a: 


:3  ^ 


CC    O 


^    d  '-  ^    C    Q 


Ti  ^    (i7  ^    ^ 


re   ,    ^  -t?   «   S   c 

ace       is 
ci    rt    c3         se 


-^       ^ 


-S 

K 

-1^       S 

-u 

— ' 

if) 

- 

«    '*' 

sn 

"y 

4-' 

cH    =3 

N 

X 

— 

xP  = 

=- 

'S        ^ 


=s       — 


i  -2  5  ^1':. 


to  5 


0  a 

:  a 


TABLE    OF    INDICTABLE    OFFENCES 


435 


o  •>*  »      ■*  •*  t^  OS  >o 


1   CO  O  05 

05        o  o 


UOV  ^     (a     (O     V     Hi  V 


aj    CO 
O    01    V 


><'^ 


o  o 


^  I 

=-'  I   .    '".i^. 


o 


fs<  ^  <5 


CO  "^ 


■  m 


*         ,       ,,v        , 

:  ■-_ 

•    00      •    00    ro 

•   M   a)   ai   o   t. 

rr 

O 

50     K 

5J  '>> 

office 
2  yrs 
olhe 
mo.h. 

2 

>5    ^^"^      ^— H     JO    —     00    — 

•     ?.^ 

— ■  -^' 

sc^  =  =« 

"^  ^^ 

ut  j£ 

5  2-:  o  ^"  ^  -^  =«  ^- 

SSo^- 

^  — 

■2  i  f.  5 

t.'-S^ 

a:  & 

^■■^■>;^'  S..^  S..i  H. 

02W  E.J 

B.y: 

£,  & 

S     i^       .0) 
0)    -  —    ^ 

51 

W  P-l  HH 

fL|  Ph   OJ   Ph  hH           M           hH 

P^PL,M 

mP^ 

I— (   hH 

P5 

-  -  -  -  r  ■:;  ? 


;!.._     X     1>     1< 


«  ^3 

^  2 


a.      i  c  i 


v 

s 

^    >>  SO 

1.    o   = 
2-5  1 


3  .S 


a,   be 
5  "^ 


>.^\ii  a,  u  6  o 


tc  2  ?:  s 
g  c  s  ^ 

'■r  5§  -^  _  -o 
soo-rt  27; 

•S  ii  £  g  SJ 

*  5  w  S 

•«    "5     4,     4)  3 

.»*    ^    ra    3  s 

£  .S  -S  ~  c9 

1  0    0 


K    K    J 


436 


TABLE    OF    INDICTABLE    OFFENCES 


S  ec  05  ■*  «c  -^  ?o 

I    OO  t^  O  00  -H  (M 

Q^  CO  CO  CO  CO  c^  »^ 


05  OS 
OJ   CO 


fM  O  CO  OS  o  — < 

-H  O  O  —  (?»  (M 

— H  CO  CO  c-i  ^1  oj 


:o    cc    cQ    33    en 
(U   (u   V   a)   a>   O    o 
>^  >^  >H  >H  >H  Iz;  12; 


03      CO 


CO  CO      X     CO     CO      CO     CO 

0)  0)     ^     C?     <y     a;     0) 


r  .s   ^ 


in     ^     0) 


-So 


3  ^ 
0)   o 


JO    to     .    o: 
>f5  r-  '—  i.o 


32  OJ    ftyj 

•    •  S    • 

>^  hH  P-l  P-l  l-H  P^ 


'-'  f^  2    aj    ai  "^ 
CO    eo'    , 


??^co 

<^'  ■==>  ^1 

CO  -*  2J 

CO 


§'  §  ;=;  s'  s*  1=;  ^ 


s  -* 


OS  o       ^ 
^5  y  ^ 


O 


fefe 


^    is  ,  -  .  •  CO  t> 

^     k3    1^    O    r-    ;2 

o  o  Qc  ^  o  j; 
§  ^;  ^  1^;  §  s 


5J    60  0) 
2  'i* 


c  ■- 


c* 
-t>  -C    *^ 

•15  ■s  ^ 

2  '«  ■  r-    O 


iO 


>^  "  !so':3  S 

I  -^  I'll  I 

■S   2  •=  3  -5  .ti 

S'  r,  ^  ^    s  -^ 

•^    .  J  -k^  35       :;       f!l 

??  52  ^  ^ 

~s    O  O  cS 

8 


•£ 


■.2^^ 


S  2J  ■*^ 

O   ^      p^    r; 

■^  o  "  Pi 

a  5  °*  '^ 

"    bcg  a 

« .5  tS  s 

a>  .3  ^  ^   I 

'f  =^  & 


^       O 


O 


S  tc; 


n  w>.! 


^     n  1  ~< 


t-     r! 


§  .2,  ?  ^  -s  :3 


'rt  ;5  S"-c  S  4;  ~  at^  <y  s  ^  g 


aq      aj 


(55  cq 


6S 


TABLE    OF    IX  Die  TABLE    OFFEXCES 


4  3^ 


S5 


«>- 


>4  ^  >l  JH  >^  >H 


C     r. 

'-    iC 


_  5 


■>  >  §  £  ^ 


_-^  5^ 


^1  5 


-    -  —      .  fM 


(M    O 


~  c  o  °  ^  ^  ^  ^    •   ~ 
:r^  o  &■»  d  ^  c   a;  x"  S 


;:.      X 


PLh  hH 


>>       :  ore. 

"^        .  •"  (>i  T  ;^ 

^-            -  ■  .  -  5*5     ^ 

;-.  -"  id       05 

HH          P-l  M 


•>*   W  CO 


b^ 


feS 


c;       — 
00         S 


§    fe    >5*    1=;    ^    &;    § 


~ 

~ 

5 

0  s 
"•0 

— 

^ 

b.   " 

■ 

-j^ 

; 

di  .5 

.t: 

S  i; 

S     to 

> 

ij 

r.    " 
U)  - 

^ 

§ 

0  . 

~  0 

as 

t 

s  ~ 

5 

'-^r. 

C 

— 

"■ 

^    U) 

So 

c 

s  -r 

<ti 

j 

tr 

^ 

?-,  «> 

Ui 

'; 

2  -^ 

^ 

u 

V  "-^ 

j; 

"" 

C    3 

•  i 

X  H 

y. 

^ 

'/. 

•U)  '-> 

^ 

.s 

, 

« 

^ 

.z  sc 

^ 

^ 

Vj  - 

Ui 

^ 

i 

^^     s 

S 

^rf 

.=     "Ui 

,2 

p 

7; 

■= 

"ti 

i  — 

i' 

= 

&■" 

s       ^        o 


o       -  .= 


OS  ^ 


«  „       i       s  ~  i       a 


1 

0 

^•3 

S  0 

0 

<;  -^ 

,   "  0  j; 

T? 

BPfe 

<£  "  s  5 

So 

a  0  "; 

1°  "^ 

M     0     U     0 

sc 

s 

^:Ss:| 

0 

0) 

"0 

«  to 

c   ^ 

^s  S.s 

'«   s  ♦->  - 

1 5:s.t; 

.a 
0 

^n.SP 

u 

«  E 

to 

= 

0 

t/) 

0  *- 

r^§J 

•= 

8 

3 

X 

— 

r;  ^ 

^ 

-  ti^  ji- 

HI 

W) 

.^ 

S    <1> 

H 

^l..!"? 

J3 

0  rr 

^ 

1m  ?  0)  — 

0 

C 

'w* 

—  —  «-i  ■-' 

s 

'•^ 

«-       o 


438 


TABLE    OF    INDICTABLE    OFFENCES 


00  05  >o  ®         — < 
it5  lO  IC  >0         CO 

CO  ec  cc  ?o       (M 


o  'y. 

X 

1  —  ~ 

o 

1 

» 

« 

<U    <u    O    O  ai 


^      ^      ^        !??;       iM      >< 


o  o 


.» 

i-               -     . 

is.- 

>■ 

<u 

?> 

r  impr.  o 
and  rgces 
h.  1.  2  yrs. 
rfeit    pen 

O      M 

o 

s 

a 

^-   o 

s 

h.  1.  2 
h.  1.    1 

- 

(M 

-> 

s 

^'s 

>^  C    u    ^ 

a 

&. 

«1 

.S    rO 

E. 

2-S  feo 

c 

0 

2^ 

j_    v-< 

MMp. 

a; 

p 

l-H 

."    rS       ?:     -tJ 

at 

.s  ..a  —  s 

>— 1 

<5 

t— 1 

Pm 

P^          M 

fe    s 

h^ 

<»  -1  (M  C-J 

<»     M     to     to 


^  S  fe  fL;    er 


S    S 


^    > 


s      =y 


:^    s 


o 


05 

o 

as 

eo 

o 

3 

:^   ;^^   s 


S  "^ 


:^       ^-^      J 


^5      _  >,     ^ 

•S  rt         ;S    c         a> 


S  ao 


Y  S  g 
5-.  ::-S 


"  fl  2 
■■S  So 
.£  S  £ 
<a  -    ., 

!2  Co 

o  o   c 

.3  5P  t£-S  ^ 

x"  «  5  5 


c     . 

-   4>  ^ 

»  c  >> 

*  °  8 

«    (B  O 

i  i  ^ 


-2  <v.         (U       ^ 
^   «       i;        eg 

.n  ^  ^  u  *^  S 


.'-      -^  -K         Tl    ~ 


4>  , 


o 

V    O 
CO  .»-> 


o  o 


TABLE    OF    INDICTABLE    OFFEXCES 


439 


^  rC 


1^ 


tH         >^ 


01  — 

^ 

, 

''J 

.•    ci 

Q.-- 

II 

0 

o 

C    O 

j^ 

S    O 

■"'  -= 

CO    ■"    r2 

<«!  .., 

■^  ^ 

CO  ^"  ^'— 

^  ■^. 

1) 

OJ  Ol 

a     •    >^    . 

S  5 

&'no  3 

so 

o  o 

tso""    S  '*' 

~  2 

?,  2  £ 

o  -• 

i^-i£. 

.S    P^ 

u  .5    >> 

^J^^ 

s  o 

[=< 

^ 

1— 1 

P=H 

1— 1 

O  t^ 

B     X 


> 


^  s  s 


^ 


^   s 


12    H 


to 


I  -  =-=     =    ^  3f- 
!;  T,  5  -     ©    ^  .=  " 


-       _      o 


2  r.  'n 


=  5. 

-  s 


1  ■§ 


t^  .>, 


<  .2 

11 


uo 


7 

'ABLE    OF 

INDICTABLE 

OFFENCES 

0 

i 

00 

(N 

(M 

ec 

£:« 

e; 

.  ifi 

t-      ":*  oo 

;s 

^ 

CO  CO 

X 

M 

i-~ 

t^ 

«o 

Ol 

<0 

cc 

c: 

_.  -' 

1 

C5  C: 

C5 

t£ 

05 

o 

0> 

t« 

i^ 

_; 

-^ 

CC 

(N 

(M 

M 

CQ 

1 

•M 

— 

a- 

C 

Cf 

en 

a 

"C 

[/ 

w 

a 

»■ 

a 

8 

c 

a 

a>   C 

a 

es 

O    C 

0) 

c 

(U 

a) 

a 

a 

^ 

>■ 

>^^ 

>- 

> 

^12 

r^ 

^ 

>H 

;^ 

K- 

>■ 

>< 

> 

c 

(E 

> 

-+ 

0)  _< 

c 

o 

c 

0) 

o 

c 

^ 

I-* 
>> 

' 

3  '^' 

>>> 

s 
o 
> 

>> 

1 

* 

a: 

x/ixf. 

a 

"o 

t;' 

u: 

'/     to 

^  g-g 

cc 

j»       J 

% 

5 

^ 

5 

. 

>, 

.     IC 

o 

^ 

P- 

p. 

fi. 

S 

> 

PL 

P- 

Ah 

fM 

A^ 

Ah       fe 

^ 

£1.  <>> 


«B 


fe  &^  plH 


o        T 


c^ 


fefe 


CO 


►- 

©1 

£ 
o 
o 

^ 

!« 

«     5 


s 
o 

o 

0) 

i 

1 

O 

>i 

SO 

S 

S 

a! 
cS 

S" 

^ 

^ 

s 

M 

^ 

<u 

!_•• 

>> 

u 

^ 

.s 

-c 

^ 

-tJ  Sij 


^    s    o       ^ 


^ 

ct: 

o 

— 

» 

Q. 

X 

n 

0) 

c 

« 

o 

aj 

^O 
'S 

r; 

O 

o 

><; 

0) 

^ 

tC  SJO  P 


^ 


K5 


&q 


.2 

c  -^     .  ■«  d 

S  =*  ^  a,  . 

^  cS    C    tu  p 

S  S"  S  o  ^     ^ 

°    O    O    "ji  o      t, 

'a      S        ^' 


-=<: 

"1^ 


I 


TABLE    OF    IXDICTABLE    OFFENCES 


441 


O  O  I--  r- 


—  1^  "M  -^  t^         <M  ■*  00  -^  t^  lO 


ooco       ooo       oo 
25^5?;^      12;^^      5512; 


oooooo   oooooo   o   oo   o 


?j 

— 

r '~    r 

;= 

^  t^ 

;::  ^ 

/. 

-J. 

•J. 

a: 

OJ  CC 

z^ 

?H 

P- 

CM 

P^PLi 

^     -4<    ^     ^       ^  .5^     _H       >>-M       f^^ 

t^-i  rr  *^-i  ^  **-<  TT  ^  ^ 


PL^  PM  PM  fM  Ph 


Pi"  Pm  fii  (i;  Pm  Cm 


P^      Jp^ 


_■  <M  "*  ^        t^  00  oT       2- 
"   aa   ai    aa         m    m    ai         m 


c 

ec 

• 

-^ 

J 

50 

1 

1 

tu 

ll.    is,   ^  ;C4  pL,   [JL4   [Z4  pC4   ^ 


CO    EC    cn    CO    09 


CO  CO  CO  CO  CO  CC 

93     CO     CO     CD     03     »i 


pL4  p^  Eb  (£4  p£4  P^        (i(  pq  pL^  pEH  Ee^  pq 


liiPc,        Er 


^    SO 


•5  «^ 


S  2 

-     CS 

to  S    dj 

CCS 


■r   o 


~  .=  -f   ic^  Ji: 


=  5  w  „    ,  to  to 

—  ^-     !f;     C     S 

to  5  S  ^  s  'i:  's 

-  ^  •         «   a>  ? 


4)  *5  "n  ~ 

o  'r:  1*  o 

_      >><2      CO 


S  ^    O    <" 

S  .2  -«  'c 


to      «  >>•!:; 


?  ^ 


a  « 


to.,-, 


V,  5 


tcTro«?'3'»> 

,i,  I  ^  J  ^  fe  ■=  5   5   S 

=    =    ?    to  to  ';.t  2    5    8   ^ 

.c  ::  ji  .=  .=  •=  ii  -o  g  s 


to  a>  --  o 


>-    C    o 

S     4)     4) 

o  .a  ■" 

5i     4)     O    *J 

".to      s 
•^  .2  to  <K 


o  5 


«    y^ 


w     S     4) 

o  -5  o     . 


5|   S  V  g 
c  ^  'E  (o  o 

-'    O    y        F^ 


'— .  «      z; 


X   o    »^ 


>;;  c:  =  o  o  o 


o  o  o  o  o 


442 


TABLE    OF    INDICTABLE    OFFENCES 


;S  r-  ^  t^ 

p^  pj  pC  Ah 


-^  lO  '- 

aim  p^ 


9-331 
329 
339 
329 

c:  Ci  — 
Ol  'M  (> 

tc  rc  cc 

^ 

fc 

LI 

1- 

1- 

^   « 

11 

i.  a) 

^  3 

0 

^ 

1 

o 

O 

o 

Iz; 

^ 

o 

o 

^ 

O    0 

1 

1 

^ 

>  )> 


^ 


"2  ao  <M     . 
-Ol     .    to 

00     .    cc     - 

CC    CO      ».  CC 

.      »<N  '-' 

o  00  0-1  ^ 
.  t^    .     . 

[>     .   o   o 

o     .     . 

dg     .=°^ 

CO  ?0  !-•  00 
pCH  fci  (sj  PlJ 


•-0  -*  M 

CO      02      ""• 

00  t-^" 


■  CC 


o   o 


o 


o 


>>■■> 


f^"  [=4  S 


a 


03    c6 

03  « 


O 


'^    S 


S'-?   S   S   0)^ 


^  o  2 


be 

C 

0) 

•-a 


p       p^' 


to  5 


as  o 


c.  >  .2 

'   03      O!    -tj 


eS    ;3 


O    <0 


i<    P    o    s 


en    cr    2:    w  -t^    '- 
<u    O    r'    ;;  J5    01 

^     ^  a    H  ..  .  ^ 


C    in    c3    o    O 


t^    O    o 

^   rfl   .r 


0)       -  JH 

'-:  ^   03 

>.  O    '2 
■3  -^  ^ 

"3  -S  ^ 


^    s 


bo  0 

S 

is 

o 

-M 

-  ^ 

a 

0) 

(V 

-M 

S     5e 


c3   ;;■ 


^  SO -5  01 

D     C     01     P 


P.a,5  -S^ 


a,  s      0 

^     d    O  'S 


CU 

5 

0 

n 

V 

^ 

+-> 

CS 

,— 

53  "fl . 

01 

0) 

rn 

0}  d  ' 
a  F  • 

4^ 

g 

a 

-M 

-M 

es 

i: 

;:; 

i^ 

0 
0 

0 

'0' 

0) 

c5 

0    4) 

■^ 

SO 

TABLE    OF    INDICTABLE    OFFENCES 


443 


00   00 


CC     o 


><  >H       >l 


Ph^ 


« 


C    9 


O    ?*    o  J«! 


Lt 


=i  5       ii 


05 


K 

^ 


N      S 


.p:         .       *- 

«       ^        >> 

>3 

>^^ 

sc  r.; 

S       c      ^^ 

(N 

(N^ 

"1 

X.  1. 
th. 
imp 
th. 
h.  1. 

-^ 

-•  s 

.^ 

0 

..J  o  J  .. 

O4 

t^   a; 

f-l 

t:  '-c 

cS 

&<  s 

M         PH         h-l 

©4 

&l  u 

c  ta 

s 

S  o 

1— 1 

1— 1 

1— 1 

l-H 

a 


— '  '^' 


0 

0 
0 

c3 

d 

> 

> 

0 

(M 

^ 

<*d 

s    s    s  s 


-       >        1' 


•ii 


i 


« ^  -^ 


=    ?->-^  o  e 


-t-i   >^  c   o   s: 


a> 


o 


« 


=  s  ■  J  •;  .s     5 
=  59  tp_^     ? 


.5  "*  '§  ^  I 

^  ■  S  §  *  5 

■>•  S  •*  ^  o 

P         ^          O    cs  ij 

"'   s  s  3  s  -s  ^ 


■r^T>,  «<-s 


SP**"  ■^  .5  ^ 


**  5  —  **-  li 


Ml  io 


ifc  S   c   =  ^   s   . .  -s  ^ 


to  ^:S  =  ;2  ^^  ^ 


M   r   '■= 


_    ^  ._  ._  -        ^  .-  u. 


?  ^  0  >.    2  -5  -5 1  ■=  J  =*   .    * 


II 


0 
c3 

en 

_^ 

c 

s. 

© 

11 

U) 

* 

r"^ 

a 

1 

s 

'^ 

<^fc 

e 
0 

r, 

•SB 

-« 

■9^ 

U4 


TABLE    OF    INDICTABLE    OFFENCES 


(N  t^ 

t^  >0  lO 

W 

I— 

(N   00  (>)  C-l  CO 

CO  t- 

t--  OS  Oi     1 

OS 

00 

OS  00  OS  OS  o 

(M  C<3 

CO  (M  (M      1 

tM 

(M 

0>  O)  (N  (N  (N 

CO      03 


CC      CO      CO     CO  CO 

^    ^     ^     ^  4) 

t><  [>i  |h  !>i        t>H 


_    ^    _    to    CO 
O    O    O    <U    V 

Iz; ;?;  Iz;  >H  Ph 


(^1 


„;  .^  ^     ;:  e     « 


■H  (In 


O     CO 


"^j  i; 


a    K'TirS 


Cf 

Oof 

CO 

o 

.  w 

s 

fM 

fefq 


CO      CC     CQ     CO 


CO      M      W     CO 


p:;i^§§    ft;    f^;    EL;[i;^Spt; 


60 
bO 


s 


o 

"^ 

o 

o 

^ 

a 

iJl 

s 

ctl 

«J 

»> 

^ 

o 

OJ 

<i-| 

o 

c 

- 

ie 

s  s 


•^„  >i  & 


i-   t-   <a 
ce  (u  -c 


.S  5  tc^ 


>»      — 


^  cS 


«C  -'  da    ? 


o  ce 


ce  O!      O      O 


5  o 


S  5"" 

C    r^      bO 


^         •    "^^      «       iJ 


■^ 

1-  tc 

so 

d 

S  S 

o 

o 

J= 

5    c. 

q 

Uh 

o  :s 

u 

CO 

i^ 

cS    6D 

^ 

C) 

X        i4 

S£ 

CD 

s 

11 

to  S 

3_ 

o 

'i  M 

o 

3 

0 

o 

o 

&ii 

o 

O 

2  o 


2« 


CO     « 

CO     u 

S  "^ 

"to  c8 


o   o  o  o  o 


T3       ■  •: 


X   -r- 
«     0) 


TABLE    OF    INDICTABLE    OFFENCES 


Its 


^1  CC         !M  3>)  (M  (M         fM  0-1  C-l  (M  (M         (M  (M 


eo  05  o  o  o 

05  CO  00  X  ic 
I— 1  cc  (M  c-i  — ' 


o      o  o 


M      CO 
0)     « 

00     «     M     02 

<V     V     O     V 

CQ     CO     CQ     m     CQ 
V     ^     V     V     ^ 

>H>^ 

>(>^>H>H 

>h>^>h!>h>h 

(O    (D    _  eo 

v  o)  o  o  a> 


15     ^12; 


.    » 

.    'f 

If;  ^H  o  —« 

pL^  Pu  ru  PlI 


M      PM<3 


^  o  o -J 

.     -  o     . 


en  « 


CD 


0}  CQ  X  g^ 

-     -    I     to 

o  CO 

«5  S5 


■^Sc^ 


oi  n  -f  1^  ^ 

CO  CO  CO  :o  1- 


OT      X      «:      73      32 


CD  O  '*  CO 
-<   O  "*   Tj*  ^ 


m      W      X      QQ     K 


O  -  „ 
O  1-  CD 
—  G5  OS 


o 


:i;         ^        1X4        ^^        ^  PH  (2^  (Z4        fn^fLffinfn        pci  Eh  pq  piif  ^  [x^  ,^ 


»j     02 


s    :^g 


2  -2 


p 

i) 

— 

^ 

ft 

tb 

1 

^ 

i 

,^ 

^ 

s 

"- 

i; 

z 

-J 

y 

tC; 

.t; 

» 

1/ 

^ 

• 

.Z 

? 

= 

^ 

0) 

m 

o 

o 

<1> 

c8 

> 

'^\ 

T^ 

ce 

»-; 

•' 

^ 

o 

Cw 

•  M 

y 

^ 

0 

'^ 

S 

in    s    to  ^M  p  5 

^  ***    c;    'A  -^ 

s  .  T"  'A  u  r 

—   >-.  t-    aJ  ;:  ? 

tD;C  w   ''  *-•  to 


^1  .^    V  ^  S    7!    s    (- 


?    *    -. 


—  ^ 


to  o  s 
2  to 


Hi  5  ^  — '  S  5  S  .s 


«^  P  ;-. 


«   . 


'•^-^   ^ 


1^ 


&i       "" 


SS 

.12    bC 

to.g 

rt    o 

t   s: 

•3  ■% 

—      .!-> 

js  ::: 

o  ^ 
a  3 

O 

O    X 

^  c< 

V 

, 

tpo 

ti^' 

~  ?, 

«  •? 

"^    eO 

eu 

4  46 


TABLE    OF    INDICTABLE    OFFENCES 


rM  -M  rM         tM  (N  O)  (M  O)  (?) 


IC  «5  lO  «3 
«M  (N  (N  (M 
0-1  (N  (N  (M 


»0  W3  O  05  C-)  OI 
l^  <0  1^  CO  1--  1^ 

CO  fC  CO   fO  CC  CO 


Yes  

m    m   m   Oi   m   V 

a>     (V     (U     V     ID     (L 

a- 

<u 

> 

^    m    xn   KT 

<o  <o  <a  <L 

03 

t^  ui    VI    VI    in 

o)   o   0)   a>   0)   o) 

P"*^^  r^  >^  l^ 


t,             ... 

!j 

*--            ,A 

^ 

i 

©;„:::        : 

o      .      .      . 

:    :    :    :    :      o  ^ 

:    :    :    :    :        .9 
^  so 

0           fj 

a 

.§  ^ 

.3        -- 

•S  "^ 

t<    cS 

'■s   <^ 

?^            ^ 

i-i      CS 

;:^ 

o  ^    :    -    :;        - 

o    ^ 

^ 

2  o 

si 

2  o  a 

2  o 

.5    rJ2    r-    ^    _:    .3    .:=      S 

■  S     r^                  (— * 

Er 

fH          1— I  l-H  h— 1  fI^          hH 

liH             H? 

y:    M    CO    71    tfj    ^ 


S     §g§     ^S§g§^ 


l^  O    (N  i-H  CO  t^  LO  CO    I-    GO  C5  -H  OJ 
-*  -^  S-l    fM  (N  »>»  0-1  CO  CO    CO    CO  CO  CO  CO 


X      33      CC      73 


ss 


?» 

c 

» 

.-* 

l~t 

:;3 

l^ 

-* 

lO     .. 

\mmmm 

HH   Ph   Ph   PM  f^H 


O!     CC      W     X     a)     CO 


S  P=;  Eh  fe  Pn  &h 


c 

■^ 

i 

o 

J^ 

33 

0 

.« 

M    S    2 


Is  =*  'J^ 
.2  bo  o 
jj    g    <u 

^  ^  fc. 
—  SO 
o    rt    o 


•-  i^ 


0)     t»s  03 


•H       =« 


03      &l  O 


•5       < 


>s  '^         C 


o  .2 


so 

3  -*^ 


P;  '^    fi  O  -C           p^ 

^  *r*  •■"■    :3  S  '"'  T*    ^ 

■jf   9   ij3  g  3  3   ^   S 

"  ■*^  'S  ""  «  ~  .3  t' 

-S  I  i  -S  .3  a'=  II 

1 1  i  1 1 1 1  ^i' 

3  '?5    M    ?  S  03    r  -3 


so        'T!    oi  *s 


s  ^  ^  ^  o 


9  2 


S  o  c 


^  o  ce 


«  ao 


=2  I"  SP  to  -^ 

•2  «  S  g  o  § 

;s  o  .i  •— ;  0) 

3  c  o  r3  p, 


«  fl 


'a 

*    (4 

Bi 

c3 

0    fi 

(i) 

9 

cj   S 

o 

=^5 

.O 

o 

O 

S  .« 

d 

42 
s 

u 
O 

3  2 

<4d 

i 

"3 

3    « 

6C? 

ro    03 

to 

"■ 

3    « 

i^-i  -3  c3  CJ  ^    0!  g 

'<  ^  -g  'H    &-  g  <U  ^ 

.O  ,£  CJ  t,  ~   ^  ^ 

.S  c  o  o  o  c  o 


TABLE    OF    IX  Die  TABLE    OFFENCES 


447 


O  o  --o  —I  —  :o  ■*        't        lO        'M        r^  (M  c:  o  o 
l^  I^  O  t^  t^  O  l^        t^        1^        t-        O  l^  --c  I-  l~ 

ccccfocceo       CO       cc       ec       co       sociccccfo 


U~  -H 


3}   o   o   a>   cj   o   V 


-      >H      >H>H;z;>-i>H;i!q>H      >^      >H,!x 


_    !0    to    a    a! 
O    a>    V    v    0) 

!2;>H  >H  tSH  tH 


E-H       >^  ^ 


Ss^ 

^^ 

„,*■ 

•  .^i- 

.■  to— 

ce  o 

T' 

'-    x 

K' 

S  CO 

'"• 

eii     '^ 

.'J 

M  "^ 

^  ^^ 

-"^ 

o^'  .. 

o  "": 

X 

•j:  -ji 

CO 

2  o  a 

^ 

PhPh 

Oh 

P=H         h^ 

H- 1 

J^E 


a   '-^, 


UO 


a.-^  &     ^ 


J/;.  CO  »;■  ftc/i' 
Ph'  (i^  Ph  M  P-^ 


^*"  (M  <--,  X    S    <-    tJD 

V    /M    —     i3    »— <      ??^ 


;-  Lo  ;;  t.  a 


O  O)    p"  O    c3    C    >> 


cc    X    m    CO    cc    K    CO 


CO      GO      CO      CO      CO 


IJ^  ^^pL^^^^^f) 


(3-1   fe   ^   -^    '^ 


•"  o  « •=  =  n  5 

-  T   i  -r   s   V   r 


—   —   -/, 

0  <?  c 


o  ■«   o   to 

3  «!■" 

cs  .2  <5  -^ 

'        4)      SJ     93 

g  :5  «  :S  -J 

(0  o  ^  toey 
«  »^  3  T«  " 

—    5  60  >-, 

t;  .=r   r  3  o 
5  5      -5  ° 


o 

«  s 


ill 


oj       _5 


-S^'-«a 


^'3 


5.  OS 


to  2 

C     .4-. 

•s  o 


4,  ,^ 


^  ^ 


IS 


TABLE    OF    INDICTABLE    OFFENCES 


-»00 


5!q    !2;;zi;2;>H 


^      ^^ 


K-l  >-> 


o 

!= 

=rt 

CO 

& 

u 

CO  "^ 

.    to 


^  i 

* 

U  '^ 

ft,  s 

S  * 

S^" 

CO  rt 

o  — 

tso 

C  -2 

o  C»             OJ 

l^ 

p. 

Pk 

p^     h^;^ 


^  '^ 


o"g" 


^  ;>  E>  (N 


s§ 


(*(      fe  ftl 


s:s< 


i 

ci 
o 
en 

O 

is 

cS 

S.2 

hJ 

o 

~      03      ~ 

•s  S 

-_ 

c 

•~  ^^ 

c 

^ 

8    C    OT 

1-2 

o 

50 

- 

+3 

s.  ao 

03 

<3     ftl   C 

s.s 

4) 

'C 

o 

o 

S 

§    fti  o 

f=^5fi 

s 

SO 

•&  ^  -^ 

.a 

■|  s  i 

2  ^ 

S  o 

S  ==  g 

S  S  i^ 

S"-^  .2 
5  -^  ^ 

"      ^-5      03 

-  o  ft  S 


bp      2  E'^  -^  S 


Cj     U     03 


13  -S 


^'^-^^ 


S 


s 


TABLE    OF    INDICTABLE    OFFENCES 


449 


e<5       ec  CO 


55     ^     ^     ^     Iz;^;^; 


c        o   « 


125       ^ 


J2;    >^!2; 


^2;    ^ 


M  P-l   l-H    "^ 


•  --pa) 


S   "   r 


&  S  ?J  CO 
•-^  p  °  "    . 


«S      >^^ 


—         ^  -M  « 


O 


■^         fjH  fx^  ^, 


^     «!> 

?"  o  ^ 
o  '^  ^ 


O        : 

":  ^-- 

^         in    «; 
I— I  tn 

o  CO 

-     -ut  » 
^  ^  0-1  CO 

(N  _^^l  CO 


[^ 


U,  ^   it  =  3 


2  —  .t: 


C    Uj_s    o  •- 


5  !« 


w 


<:  ''■* 

z    a 

4»   a, 

ii-e 

1    u 

-S       4) 

J    0 

1  ^is 

2^3s 

5 

1      "o 

w 

b 

a. 

a, 

0) 

c 

c 

eS    o 

<«    &. 

.a 

"    ^ 

b 

c  o< 

p- 

o    ,- 

u 

s    * 

01 

4>  -S 

4,     O  ^ 

.S  ^      = 


I 


(J  (J 


450 


oS  00 

1^2 


TABLE    OF    INDICTABLE    OFFENCES 


'^    00    OO    00  r-. 

O  00  00  00         CI 
<M  Ot  (M  <M         (M 


O  't  O 
CM  Oi  UJ 
CO  (N  -H 


'C  o> 


5-e 
II 


c 

0 

c 
!2 

;! 

01 

o 

12; 

>H    >* 


«  o  o  o 


>^;2;;2;52;     >^Jh     'A'iM>< 


P-l   !-i 


p 

>i 

;-. 

3} 

^ 

<x> 

o 

•— ' 

■"• 

&- 

:/.' 

Zfl 

C» 

1— 1 

PL( 

Pm 

fl. 

2  i  § 


fj^  HH  P^ 


00 

»j 

^ 

•  rt    ti  ^  <0     . 

„ 

00    to 


00^5^^ 
rt  00  .-H  00 

P=i  Pm  Ph  pq  ^  pel 


!>■      > 


01       o\ 


(=< 


2  fe 


^     M 


^       5P      ^ 


O*  2   m   ci  -;^   g 
?        c  •«  sjo—  S 

I  .s  s  s  ^  --  ^ 


5£ 


O  £    rt  i-( 

o  o  ija  c 

o  {J  fi  .2 

'^  ^'-^  'o 

S  <n    S  a) 


oj    to  io 

S  S  ~  .S  .s 

cd   O  ^  ;i3  ^ 


fti       0^ 


TABLE  OF  INDICTABLE  OFFENCES 


451 


(M  cc  0-1  ec       rt  r^  eo  CO 


CO 

05                   aj    03 

« 

a>             <a  <u 

>l 

?H             >*>s 

*<  -\ 

o   a> 

00    : 

t- 

>^    ; 

&"r 

?) 

.^5 

,   > 

.     05 

-;  '*5 

O  Xi 

o  — 

"^  t^ 

*J 

±4) 

o  g 

S^ 

S-x 

fe 

p- 

1— 1  rM 

00     EC     CQ 

O)    <U     V     o 


o  o  <i>  v 


-   -  o  c-i 


.    o 

S  o 


Pm 


d^  Ci 


03     CD 


«o  CO  ^  CO 


>  o 
^  da 


??S?'«2 


—I  -^ 

CO  CO 


,^,^r%^       fi,[3Hrt^ 


<^ 


ti^S         .S    J* 


I  i 

5  * 


■3  2?      ? 


aj    —    o 
^    5    CI. 


J^ 


c       ;3 


I  c      a     >5      ^ 


s     ^ 


V 


Sfi  05 


00  :t3 


so 


to  a 


s  .S  • 


~   c   4)   a> 


c       c  .22  03 


*»  o  S  ^  'q  c  "" 


]>  .s  tc  so 

:5  is  .£  .5 

•J      4-1     'm       S 


O    a;     ct; 


I- 

a; 


I  s 


(J  u  :i 


452 


TABLE  OF  INDICTABLE  OFFENCES 


O    O 

CO  CO 


o  © 

cc  CO 


1^) 


>-  u 

5ti 


to     CO 


pH>H 


^       !2i 


^    ^ 


tH 


pm 


PM 


Ph  so 

so. 

>1 

a? 

.si^- 

Ph 

[^      p. 

=e 


5  -*" 


Em;? 


> 


^      ^ 


"*      ^ 


-« 


^ 


'—     0) 

a)  •— ; 

'-•  '-3 
o  ^ 

4)     O 

■^  o 
S  ce 

=    =4 


CO 


CO  ^    O    to 


3  -^    cS  .t^ 


60  i. 


ce  ce 

to     CD 


■2   S 


eg       4) 


<u  ^  4=  4= 

O     w     Qi     ni 
CO    5  _2    J^ 


e  to 

Jo  « 


-5  1      2^f^  2 
g  sS     .»     "g ' 


o   5 


1-f     =*       iH 

s   i-   a)   oj 

o  T  jS  o 


•S  2 

i.  OS 

■^  .2 

S  S- 

e  c3 


fl       > 


U  r;     (V 

C  ^       ^ 

0  ^ 

+5  ^  60 

S  ^      CO 

-*->  ~  --^ 

C*  in 


8ii 


ft; 


ft:;  ft;     «^ 


TABLE  OF  INDICTABLE  OFFENCES 


453 


Oi  Oi  C^ 
t--  l~.  I~- 
(N  (M  (N 


05     O!     _ 

0)  v  o 


>*         >H 


>^         >H 


.  -  e  «  i: 


p^ 


o  2; 
a>   >i 


^    Tf    -* 


ri;     ^ 


E^  [z^  P<^ 


<« 


s    fe 


<*d 


^ 


<J« 


§   s 


o  •— 

—    "^    o 


^  «)    ?    £    s 


111 

^ 

s^ 

•> 

l-S 

pj 

rt 

'd 

" 

t^ 

^ 

o 

o 

O 

rn 

to 

O 

05 

s,     « 


<0     * 


to  - 


^  f^ 

05     to     to 
to     O     4* 

•^ 

tn 
S3 

Expl 
njun 

"3 

c8 

c!  tJ 

S      »     HH 

u 

V 

o 

V 

2.S 

S       2 
o       s 

tn 

oj 

Ars 
er," 
licio 

•5b 

"o 

bO 

>t 

V    l-H      ' 

to 

=i.i: 

to  ^,   - 

S 

to 

c 
o 

t9 

11 

.^2l 

F 

4) 
P 

C 

* 

f 

V3 


V3 


454 


TABLE  OF  INDICTABLE  OFFENCES 


in  00  w> 

00  W  00 


at  Oi  o 

00  00  OS 

e<5  CO  ec 


»o  CO  O  «j  O 

GO  00  05  00  OS 

CO  CO  CO  CO  CO 


I  "^ 


u  u 

to  o 

•St 


ifi    m    w         cnmo?         cocnc/jmcfi 


>^^ 


.2    Ol    ^    r-J     .3     CM    r-: 


C    il. 


t     Sh 


o  t; 


5^ 


HH  KH  pti 


(M      ^      /=  -< ; 


rr-        ;  oo 


-H   OC  GO 

■^      Tt*      Oi 

C-l  (M  CO 


(M  t-  >0  t^  I— 

OJ  lO  CO  O  CO 

Tfi  ■*  lo  CO  CO 

OT  c/;    cr    w    c/; 


=y  =« 


o       o       ^ 

CT>  -H  -H  ^  — I 


Em      fe 


O 


o 

05 

tyi 

^H 

^H 

CO 

(?! 

CO 

o 

o 

K* 

> 

o 

CO 

-t 

■^< 

=y 

^ 

o 

eo 

(M 

ri 

s   s; 


.2  •- 


io  s;  ^ 

<U    O    o 


o        o   2 


««  2  2 


O    s 


cj  -u 


J1    -        "  ^"^ 


3    s    ti    M    &D 


■t!   K    o        3 

^  to  ''  t«  '^I^ 
c^    =    to  g    X 

To  S  j3  ,5  ^ 
<i>  S  a>  ^  o 
S    (A    oi    O    3 


to 


•2  S^ 
S  '5 


£>} 


rt        _rt 


1 .2  ?^  ^'> 

/~     K^^  ;3 


J2     ^ 

M    3    p_| 
(U   a)   > 


tj 

^       to 

so  o 

3    tn 

3    |;S 
l?2"3 

Co 


Q* 

s   : 

&. 

bO   • 

m     • 

0) 

Ti  « 

t^ 

d5 

to  J! 


TABLE  OF  INDICTABLE  OFFENCES 


455 


O     O) 


at?    tr 


^    ^ 


-^'^        .3 

P^*  Oh        ^        fa 


e-i  ^  O' 


bo 

.3 


15  SM 

Q         PL, 


o    ^ 

si 

fa" 


^  TS 

.  a 

A    eS 

^ 

&    r- 

.s  o 

<u 

o 

^    '— 

br 

o 

o 

<u  . 

u 

•S  s 

0) 

k< 

fa 

•/     r. 


fa  fa 


>■ 

C8    d^ 

o 

O) 

■fo  " 

.« 

»3«> 

ira 

03   ^_| 

C   CO   ^ 

o 

<!; 

O       fa 

i  i  3 

^  >  ~   i.       s* 


i      i 

•s 

K-i 

to 

0 

:       0 

0  " 

5      0 

r^^ 

5      0 

*■    .2 

•^         bo 

4>  ?; 

J)        s 

0  « 

^     — 


=     ."* 


2  «'  a 

£  .3    0! 


;3         oj 


:r    -sH 


^     "     >;; 


toti      ^    -«■ 


JH 


cq       V 


I 


i^    -S 


JS 

3      • 

0 

V    °3 

•2 

<"  ^ 

s 

8  .2P 

jt 

>- 

^ 

t; 

o 


o  so 
^;2 


fa    fi 


456 


TABLE  OF  IXDICTABLE  OFFENCES 


I         05 


05  ?OCDtOCOOC0050S<^CO 


CO  00  CO 
CO  — <  -^ 
^  <>)  C) 


11 


oooooooooo 


Iz;      ^^^^^^^^^^      ^^^      !h 


!^>^ 


P4 

S  'd  -d  'd 


02  a 


I— I  P4  I— I  h— (  P-(  hH  >— I 


v2  "^ 


.—    ;  tji    :  22,   :    : 

2i  : 

"^  ^Si^^n    '. 

^•-^ 

ai  _,  ■~-'       ~-^ 

'  ' 

„(M(MO)!r<5fO-*i*o^        ot^co 


o 


(;gicoaicocni»tocc!«a:         ojtoto        ,_, 


^^SSSSPchSSPh         SSS 


«« 


feS 


Ph 


-a  o 


=     .3 

t! 

<U    eS 

O     0) 

'^ 

«3  ^ 

L 

^H 

<u 

-w 

§ 

fe-r. 

^ 

I§ 

r» 

i 

tS 

1^ 

<n  TO         , 


^    g 


:  _s  o 


c4 


^  c  -g  .s  ^  y 


.2  ^ 
•5  3 


CO 


a> 


CO  ~     OJ 
r-;    S    5 


M  , 


5   2 


sc  to 


I  -3     oj 


c  o 

so  6C 


rt„3boSr2j::sE:? 


-.5    ^»' 
o  53  ce 


"0"hr 


T,   SC 


to  -D  rt 


^   to  O 


^    J-    „  ^    cS 


O    CJ    o    c> 


04    P4    Ph    P- 


8£2l2S=5^^J^, 


.X     *^   o 


klj 

^ 

to 

o 

o 

^ 

< 

'Z' 

<u 

o 

a> 

" 

■i- 

4) 
CO 

o 

^ 

■s 

«H 

^ 

S 

■" 

-i; 

3 

^ 

•3 

INDEX 


INDEX 


ABANDONING, 

child  uiuler  two 
ABDUCTION, 

with  intent  to  marry 

of  girl  under  sixteen 

of  girl  under  eighteen 
ABORTION,  .sec  '' Miscarriage." 
ACCESSORY, 

before  the  fact,  who  is 

in  manslaughter  ... 
punishment  of 

after  the  fact,  who  is 

in  coining 
punishment  of     ... 
ACCOUNTANT-GENERAL, 

forging  an  instrument  of  ... 
ACCOUNTS, 

fraudulently  destroying,  altering,  &c. 
ACCUSATION  OF  CRIME, 

sending  letter  containing,  with  a  view  to  extortion 

ma<le  with  a  view  to  extortion 

made  \\ith  a  view  to  compel  dealing  with  a  valuable  security 
ADMINISTRATOR, 

appointment  of 
ADULTERATION, 

of  food  or  drugs 
AFFIRMATION, 

making  a  false 

forging  an,  made  before  a  justice  ... 
AFFRAY  

a(;ent, 

commission  of  crimes  by  an  innocent 

(•••rlain  frauds  bv    ... 

AGKKK.MEN'i"   Xot  'I'O  PROSECUTE      

AIIMNG   OR  AI'.K'IT1N<:,  «'  rariuiis  lUks, 

in  the  commisHifjn  of  a  crime 
AMBASSADOR, 

violation  of  i)rivilege8  of    ... 

arrest  or  [)roBecution  of 
ANl.MALS, 

how  far  capable  of  bfing  Hlolcri     ...  ...  ...  'J.')!, 

killing  with  intent  to  Hleal  carcase,  itc.  ... 


PAOE 

221 

215 
216 

218 


33-36 
...  190 
...  36 
...  36 
...  361 
...       37 

...     334 

...     317 

...  280 
...  280 
...     281 

12 

...     147 

...  106 
...  338 
...       54 

30 
;{!(»,  312 
...      122 

.SI 

...       72 

...       72 

2r)'J,  269 
...     2S6 


460  INDEX 


ANNUITIES,  pacf; 

forging  register,  &c. ,  as  to  certain            ...          . .  ...  ...  .S.S  1 

APPRENTICE, 

not  supplying  necessaries  for        ...          ...          ...  ...  200,  392 

to  the  sea  service,  forcing  on  sliore,  leaving  behind,  or  wrong- 
fully discharging             384,385 

taking  money  for  binding  to  sea-fishing  ...          ...  ...  ...  390 

ARREST, 

when  and  how  and  by  whom  lawful         ...          ...  ...  ...  158 

resisting  lawful       ...          ...          ...          ...          ...  ...  ...  204 

ARSENAL, 

\vrongfully  obtaining  or  communicating  official  information  as 

to              48,  49 

setting  fire  to           362 

ARSON, 

of  ships  of  war,  dockyards,  and  tiieir  stores       ...  ...  ...  280 

of  buildings 3(34,365,367 

of  things  in  a  building       ...          ...          ...          ...  ...  ...  368 

of  a  church,  &c.      ...          ...          ...          ...          ...  ...  ...  364 

of  a  dwelling-house             ...          ...          ...          ...  ...  ...  364 

of  stacks  of  corn,  &c.          ...          ...          ...          ...  ...  ...  365 

of  crops  of  corn,  &c.           ...          ...          ...          ...  ...  ...  368 

of  a  mine     ...          ...          ...          ...          ...          ...  ...  ...  365 

of  a  ship       ...          ...          ...          ...          ...          ...  ...  ...  365 

attempts  to  commit             ...          ...          ...          ...  ...  368,  370 

threats  of 280,369 

ART, 

damaging  work  of  .. .          ...          ...          ...          ...  ...  ...  375 

ASPORTATION, 

what  is         ...          ...          ...          ...          ...          ...      •    ...  ...  246 

ASSAULT,  see  "  Woundinrj," 

definition  of             202 

with  intent  to  commit  piracj'        ...          ...          ...  ...  ...  79 

consent  no  defence  to  indecent,  on  young  person  ...  ...  202 

with  intent  to  commit  sodomy      ...          ...          ...  ...  ...  204 

on  person  protecting  wreck           ...          ...          ...  ...  ...  204 

causing  actual  bodily  harm            ...          ...          ...  ...  ...  204 

with  intent  to  commit  felony  or  prevent  arrest  ...  ...  205 

on  peace  officer  in  execution  of  his  duty             ...  ...  ...  205 

on  officer  of  a  workhouse   ...          ...          ...          ...  ...  ...  205 

indecent,  on  a  female         ...          ...          ...          ...  ...  ...  205 

on  a  clergyman  or  minister           ...          ...          ...  ...  ...  205 

punishment  of  common     ...          ...          ...          ...  ...  ...  206 

with  intent  to  rob               ...          ...          ...          ...  ...  ...  279 

on  gamekeeper  or  keeper  of  deer             ...         ...  ...  376,377 

ATTEMPT,  see  various  titles, 

what  is  an  ...         ...         ...         ...         ...         ...  ...  ...  39 

to  commit  a  crime  is  a  misdemeanour      ...         ...  ...  ...  41 

to  commit  felonj,  punishable  w^ith  hard  labour...  ...  ...  41 

to  commit  murder  ...          ...          ...          ...          ...  ...  ...  192 

to  commit  sodomj'...          ...          ...          ...          ...  ...  ...  131 

to  choke  in  order  to  commit  a  crime        ...          ...  ...  ...  1 96 

to  have  carnal  knowledge  of  a  girl  under  thirteen  ...  ...  209 

AUTHORITY, 

forging  an    ...          ...          ...          ...          ...          ...  ...  ...  331 


INDEX  461 


B 

BAILEE,  PAGE 

theft  bj'       262 

BAILMENT, 

defined         ...          ...          ...          ...          ...          ...  ...  ...  24? 

BALLOT  ACT, 

offences  against  the            ...          ...          ...          ...  ...  ...  103 

forging  ballot  papers          ...          ...          ...          ...  ...  ...  339 

BANKERS, 

certain  frauds  by    ...          ...          ...          ...          ...  ...  ...  310 

BANK  NOTE, 

forging         ...          ...          ...          ...          ...          ...  ...  ...  331 

acts  preparatory  to  making           ...          ...          ...  ...  339,343 

BANK  OF  ENGLAND  (OR  IRELAND), 

theft  or  embezzlement  of  bond,  &c. ,  from,  by  servant  of  ...  289 

forging  document  of  officer  of       ...          ...          ...  ...  ...  334 

servant  of,  wrongfully  making  out  warrant  of  ...  ...  ...  337 

BANKRUPTCY, 

absconding  with  property  in  contemplation  of  ...  ...  ...  379 

pmiishment  of  fraudulent  debtors            ...           ...  ...  379-383 

undischarged  bankrupt  obtaining  credit              ...  ...  ...  383 

making  a  false  claim  on  a  bankrupt's  estate       ...  ...  ...  383 

BARRATRY 112 

BASTARD, 

unlawfully  pi'ocurmg  the  marriage  of  a  parent  of  a  ...  ...  135 

BATTERY,  .see  "^.s-.saw/<," 

definition  of             202 

BAWDY  HOUSE, 

what  is  a     ...          ...          ...          ...          ...          ...  ...  ...  141 

punislunent  for  keeping  a              ...          ...          ...  ...  ...  142 

BEGGINC          151,  loS 

BETTING  HOUSE, 

what  is  a     ...          ...          ...          ...          ...          ...  ...  ...  143 

punishment  for  keeping  a              ...          ...          ...  ...  ...  141 

BIGAMY,  see  "  Marriaijt," 

definition  of             ...          ...          ...          ...          ...  ...  ...  211 

punislunent  for       ...          ...          ...          ...          ...  ...  ...  211 

principals  in  the  second  degree  in            ...          ...  ...  ...  213 

BILLKTIN*;,  UNLAWFUL 92 

BILL  OF    EXCHANGE, 

forging         ...          ...          ...          ...          ...          ...  ...  ...  331 

drawing  in  another's  name  wit lioiil  autliority     ...  ...  ...  335 

liLASI'UK.MV, 

what  is         125 

speaking      ...          ...          ...          ...          ...          ...  ...  ...  126 

blasplieniouH  libel  ...          ...          ...          ...          ...  ...  ...  126 

I'.OOK, 

selling  obscene         ...          ...          ...          ...          ...  ...  ...  133 

ilauiaging     ...          ...          ...          ...          ...          ...  ...  ...  375 

KliKAKING  OUT, 

(jf  u  dwelling  iiouHC             ...          ...          ...          ...  ...  ...  2.S4 

of  a  church               ...          ...          ...          ...          ...  ...  ...  283 

I'.RII'.KKY,  Hfj;  "  Corrupt ioji," 

.lofinitioM 100 

piiniHiMiK-nt  of         ...          ...          ...          ...          ...  ...  ...  102 


462  INDEX 


BRIDGE,  >'AOK 

nuisance  to              ...          ...  ...          ...          ...          ...          ...      149 

])ulling  down  or  causing  (lainage  to          ...  ...          ...          ...      366 

liHOKKKS, 

ceitain  frauds  by    ...          ...  ...          ...          ...          ...          ...     .'?10 

BROTH  KL, 

procuring  women  to  enter  ...          ...          ...          ...          ...      137 

keeping  a  bawdy  house      ...  ...          ...          ...          ...         141,  142 

detaining  a  woman  in         ...  ...          ...          ...          ...          ...     218 

BUGGERY,  .s'ee  ''Sodomy." 

BUILDING, 

stealing  fixtures  from         ...  ...          ...          ...          ...          ...     293 

setting  fire  to          ...          ...  ...          ...          ...          ...         365,  367 

things  in  a...  ...          ...          ...          ...          ...     368 

attempting  the  foregoing  ...  ...          ...          ...          ...          ...     368 

tenant  pulling  down           ...  ...          ...          ...          ...          ...     373 

BULL, 

stealing  or  killing  with  intent  to  steal  carcase  of  ...          ...     289 

BUOY, 

damaging     ...          ...          ...  ...          ...          ...          ...          ...     272 

BURGLARY, 

definition  of  and  punishment  for...  ...          ...          ...          ...     283 

"  break,"  definition  of       ...  ...          ...          ...          ...          ...     283 

"  enter,"  definition  of        ...  ...          ...          ...          ...          ...     284 

committing  felony  and  breaking  out  by  night  is  ...         283,  284 

BURIAL, 

preventing  of  dead  bodies  ...         ...         ...         ...         ...     138 

BURIAL  GROUND, 

stealing  metal  fixtures  from  ...          ...          ...          ...          ...     293 


C 

CALF, 

stealing,  or  killing  with  intent  to  steal  carcase  of         ...          ...  289 

CANAL, 

causing  damage  to  works  of          ...          ...          ...          ...          ...  366 

opening  the  sluice  of,  to  obstruct...          ...          ...          ...          ...  371 

CARNAL   KNOWLEDGE, 

definition  of             207 

procuring  luilawful             ...          ...          ...          ...          ...          ...  135 

suffering  girls  to  resort  to  premises  for  the  purpose  of  unlawful  136 

having  or  attempting  to  have,  of  girl  under  thirteen    ...          ...  209 

of  girl  between  tliirteen  and  sixteen       ...          ...          ...          ...  209 

of  female  idiot        ...          ...          ...          ...          ...          ...          ...  210 

of  hniatic  by  attendant  in  an  asylum,  &c.          ...          ...          ...  225 

CATTLE, 

killing  with  intent  to  steal  carcase  of     ...          ...          ...          ...  289 

wounding    ...          ...          ...          ...          ...          ...          ...          ...  369 

CHALLENGE,  SENDINCJ 54 

CHAMPERTY 112 

CHANCERY,  COURT  OF, 

forging  a  document  of       ...          ...          ...          ...          ...          ...  334 

CHEATING       307 

at  play         303 


INDEX  463 


CHEQUE,  PAOK 

when  drawing  a,  may  be  a  false  pretence            ...  ...  ...     299 

forging  a     ...          ...          ...          ...          ...          ...  ...  ...     332 

CHILD, 

act  by,  under  seven,  not  criminal             ...          ...  ...  ...       20 

act  by,  between  seven  and  fourteen,  when  criminal  ...  ...       20 

perjury  and  false  swearing  b}',  in  unsworn  evidence  ...  108,  109 

concealing  l)irtli  of              ...          ...          ...          ...  ...  ...      194 

stealing,  under  fourteen    ...          ...          ...          ...  ...  ...     219 

parent  not  providing  necessaries  for        ...         ...  ...  ...     220 

cruelty  to 220 

cruelty  to,  by  interested  person  ...          ...          ...  ...  ...     221 

abandoning,  under  two     ...          ...          ...          ...  ...  ...     221 

CHRISTIANITY, 

denving  the  trutli  of         ...          ...          ...          ...  ...  ...      127 

CHURCH, 

breaking  and  entering  and  committing  felony  in  ...  ...     283 

the  like  with  intent  to  commit  felony  therein   ...  ...  ...     284 

committing  felony  in  and  breaking  out  of           ...  ...  ...     284 

setting  fire  to          ...          ...          ...          ...          ...  ...  ...     364 

CLERGYMAN, 

assaultmg    ...          ...          ...          ...          ...          ...  ...  ...     205 

CLERK,  .see  "  Servant," 

who  is,  in  embezzlement  ...          ...          ...          ...  ...  271,  272 

of  factor  or  agent  assisting  in  certain  frauds      ...  ...  ...     314 

CLUBS,  UNLAWFUL, 

wluit  are     ...         ...         ...         ...         ...         ...  ...  06,  67 

punishment  of  members  of            ...          ...          ...  ...  ...        68 

permitting  meetings  of      ...          ...          ...          ...  ...  ...        68 

COAL, 

stealing  from  a  mine           ...          ...          ...          ...  ...  ...     294 

setting  fire  to  a  stack  or  mine  of               ...          ...          ...  ...     365 

attempting  the  foregoing  ...          ...          ...          ...          ...  ...     370 

CODICIL, 

stealing  or  destroying,  &c.,  a        ...          ...          ...          ...  ...     286 

COFIRCION,  see  ^^  Gomjnd>iion." 
COIN, 

"current,"     "copper,"      "counterfeit,"      "gild,"     "silver," 

"  utter,"  "  possession,"  explained        ...          ...  ...  354,355 

coining        ...          ...          ...          ...          ...          ...  ...  ...      355 

Ijuying  or  selling  counterfeit  below  \aluc            ...          ...  355,357 

iMi]joi'ting  counterfeit        ...          ...          ...          ...          ...  ...     355 

making  or  possessing  instruments  for  coining    ...          ...  355,  356 

clipping  gold  or  silver       ...          ...          ...          ...          ...  ...     356 

possessing  clipjjings  of       ...          ...          ...          ...          ...  ...     357 

counterfeiting  copper,  or  possessing  instruments  tliercfor  ...     357 

making  or  imp(jrting  counterfeit  foreign             ...          ...  ...     3.57 

coining  foreign  coppcrr       ...          ...          ,.,          ...          ...  ...      35S 

exporting,  uttering,  or  possessing  counterfeit    ...          ...  358,359 

defacing       ...          ...          ...          ...          ...          ...          ...  ...      359 

making  or  selling  medals  resembling        ...          ...          ...  ...      360 

principals  in  tlie  second  degree  and  accessories  after  tlif  fact  lu 

oHenccjs  relating  to          ...           ...           ...           ...           ...  ...      ■itil 

uttering  or  possessing  false,  after  or  followed  by  ctinviction     ...         15 

UtU-ring  by  a  married  woman       ...          ...          ...          ...  ...        23 


464 


INDEX 


COLLISION  OF  SHIPS, 

making  default  as  to  regulations  as  to     ... 

neglect  of  duty  in  case  of... 
COLT, 

stealing,  or  killing  witli  intent  to  steal  carcase  of 
COMMISSION, 

negotiating  sale  of  military 

intimidation  of  witness  before  a  Royal  ... 
COMMISSIONER  FOR  OATHS, 

forging  the  seal  or  signature  of    ... 
COMMON  PURPOSE, 

makes  partakers  principals  in  the  second  degree 
COMPANY, 

offences  by,  and  by  directors  of    ... 

personation  as  to  stock  of 

COMPOUNDING  PENAL  ACTIONS  

COMPULSION, 

effect  of,  as  to  criminality 

of  wife  by  husband 

as  an  excuse  for  taking  an  unlawful  oath 
CONCEALING  THE  BIRTH  OF  CHILDREN      ... 
CONSENT, 

to  the  infliction  of  bodily  injuries 

no  defence  to  indecent  assault  on  a  young  person 

of  girl  under  sixteen,  no  defence  to  abduction   ... 
CONSERVATORY, 

stealing  plants,  &c.,  from  ... 

damaging  the  same  in 
CONSPIRACY, 

to  commit  a  crime  ... 

seditious 

to  defeat  justice,  bring  false  accusation,  or  extort  money 

to  carry  out  acts  injurious  to  the  public 

to  induce  a  woman  to  commit  fornication  or  adultery 

to  murder  ... 

to  defraud  ... 

conviction  of,  after  or  followed  by  a  conviction  of  felony 
certain  misdemeanours  ... 

in  restraint  of  trade 
CONSTABLE, 

refusing  to  assist  in  execution  of  his  duty 

assisting  escape  from 

resisting  arrest  by 

powers  to  arrest  of 

assaulting  in  the  execution  of  his  dutj*   ... 
CONTRACT  OF  SERVICE, 

breach  of     ... 
CONVERSION  OF  PROPERTY, 

when  embezzlement 

in  case  of  delivery  by  mistake 

by  a  bailee 

of  property  found  ... 

after  a  taking  amounting  to  a  trespass   ... 

after  an  innocent  taking    ... 

fraudulent,  under  Larceny  Act,  1901 


PAQK 

384 
385 

289 

92 
113 

338 

32 

314,  315 
...  351 
...     122 

...  24 

...  23 

...  65 

...  194 

104-166 
202 
217 

293 
374 

39 
70 
113 
124 
137 
192 
305 

15 

390,  391 

95 

lis 

154 
158 

205 

391,  392 

271,  258 
...  261 
...  262 
...  264 
...  266 
...  267 
310,  311 


INDEX  465 


COiS'V  iCTIOX,  fiee  "  Previous.  Ccmrirtion,"  paqe 

consequences  of,  in  cases  of  treason  or  felony    ...  ...  11,  12 

forging,  of  a  justice  ...  ...  ...  ...  ...  ...     338 

COPYRIGHT, 

false  entries  in  register  as  to        ...  ...  ...  ...  ...     338 

tendering  false  copy  of  such  entry  ...  ...  ...  ...      Ill 

CORN, 

se^^'ant  giving  to  horse  against  master's  orders  ...         ...         ...     307 

setting  fire  to  stack  of       ...  ...  ...  ...  ...  ...     .365 

crop  of         ...  ...  ...  ...  ...  ...     368 

attempting  the  above  ...  ...  ...  ...  ...  ...     370 

COROXER, 

misbehaviour  bj'     ...  ...  ...  ...  ...  ...  ...       93 

CORROSIVE  FLUID, 

throwing     ...  ...  ...  ...  ...  ...  ...  ...      196 

CORRUPTION,  ffe   "  Brihei-y;'   "  UiwLue.   Inflttenee"    "  Treating  " 

bj'  or  of  person  in  a  judicial  position       ...  ...  ...  ...       97 

of  public  officers     ...  ...  ...  ...  ...  ...  ...        97 

of  public  bodies     ...  ...  ...  ...  ...  ...  ...        98 

COSTS  OF  PROSECUTION, 

person  convicted  of  treason  or  felony  condemned  to  pay  ...        11 

pavment  of,  bv  first  oifenders      ...         ...         ...         ...         ...       17 

COUNTY  COURT, 

forging  seal  or  process  of,  or  serving  the  same  when  forged     ...     337 

COURT  OF  RECORD, 

forging  seal  or  process  of,  or  serving  when  forged  ...  ...     336 

COURT  ROLL, 

forging  a     ...  ...  ...  ...  ...  ...  ...  ...     332 

COW, 

stealing,  or  killing  with  intent  to  steal  carcase  of         ...         ...     289 

CREDIT, 

obtaining  by  false  pretence  ...         ...         ...         ...         ...     304 

unlawfuUj- obtaining  bv  undischarged  bankrupt  ...  ...     383 

CREDITORS,  xee  ''Bankruptcy  " 

defrauding  by  gift  or  concealment  ...         ...         ...         ...     304 

CROPS, 

setting  fire  to         ...         ...         ...         ...  ...         ...         ...     368 

CRUELTY,  sP.e  "  Child." 

CUMULATIVE  PUNISHMENTS 18 

CUSTODY, 

dc-Hned         243 

D 

D.\.\I, 

causing  damage  to...  ...  ...  ...  ...  ...  ...     366 

DEAD  HODIES, 

preventing  V)uiial  of  and  disintening 

not  capable  of  being  Htolen 
l)E.\TH,  "f.f.  ''  Ilomiridf" 

how  inllicted 

incapacity  of  person  Hcntenccil  to 

recfjpding  Hciitenf-e  of 

when  it  niuy  Ix;  lawfully  inflicted 

cauHe<l  by  ominHion  of  duty 

H  II 


138 

L'.TJ 

3 
12 

13 

1 M 

;  ir>7 

Kl!) 

.  171 

466  INDEX 


DKIJKNTURE,  f*"K 

f urging  a     ...          ...          ...          ...          ...          ...  ...          ...     334 

DKBTOHS,  see  "  Bankrujdnj;' 

oirences  under  t lie  Debtors  Act     ...          ...          ...  ...         .'{79,383 

DECLARATION, 

making  a  false        ...          ...          ...          ...          ...  ...          ...      lUG 

the  like  as  to  pension  under  the  Police  Act        ...  ...          ...      Ill 

forging  a     ...          ...          ...          ...          ...          ...  ...          ...     338 

making  false,  under  the  Mercliant  Shipping  Act  ...          3S7,  388 
DEED, 

concealment  of,  by  vendoi' of  laud            ...          ...  ...          ...     304 

forging         ...          ...          ...          ...          ...          ...  ...          ...     331 

DEER,  see  "  Game." 
DEFENCE, 

right  of  private     ...         ...         ...         ...         ...  ...         ...      159 

DIE, 

forging  a     ...          ...          ...          ...          ...          ...  ...          ...     335 

making,  &c. ,  for  forging  a  trade  mark     ...          ...  ...          ...     347 

making  fraudulent  impression  of  stamp  b^'         ...  ...          ...     348 

having  forged,  for  a  stamp ...          ...  ...          ...     349 

DIRECTORS   OF  COMVAKIES,  see  "  Companies  " 

frauds  and  misappropriations  by               ...          ...  ...          ...     315 

DISOBEDIENCE  TO  A  STATUTE  OR   LAWFUL  ORDER    ...       95 
DISORDERLY  HOUSE, 

punishment  for  keeping     ...          ...          ...          ...  ...          ...      141 

what  is  a 142,402 

place  of  entertainment      ...         ...         ...         ...  ...         ...     145 

inn 146 

DOCK, 

stealing  goods  from            ...          ...          ...          ...  ...          ...     290 

causing  damage  to  works  of         ...          ...          ...  ...          ...     366 

DOCKYARD, 

wrongfully  obtaining  or  communicating  official  information  as 

to 48,  49 

setting  fire  to  naval            ...          ...          ...          ...  ...          ...     362 

DOCUMENT, 

of  title,  theft,  destruction,  concealment,  &c.,  of...  ...          ...     292 

official,  theft,  destruction,  &c. ,  of            ...          ...  ...          ...     292 

frauds  by  persons  entrusted  with             ...          ...  ...          ...     312 

forging  a,  relating  to  registration  of  deeds          ...  ...          ...     334 

forging  original,  of  a  court  of  record       ...          ...  ...          ...     336 

DOG, 

stealing       295 

having  possession  of,  or  skin  of,  stolen   ...          ...  ...          ...     295 

DRAFT  CODE, 

explanation  of  tiie  term    ... 

DRILLING,  UNLAWFUL 63 

DRUNKENNESS, 

no  excuse  for  crime            ...         ...         ...         ...  ...         ...       22 

DUEL, 

sending  challenge  to  fight  a           ...          ...          ...  ...          ...       54 

fighting  a    ...          ...          ...          ...          ...          ...  ...          ...     187 

DWELLING    HOUSE,   see   '' Burylary;'  ''Home,"  and  '' Hoiise- 
hreaking" 

what  is  a     ...          ...          ...          ...          ...          ...  ...          ...     282 


o 


INDEX  467 


DWELLING  HOUSE— ro?t/m?teci  page 

being  found  by  night  armed  with  intent  to  break  into  a,  after 

or  followed  by  conviction          ...          ...          ...          ...  ...  15 

being  found  by  night  in  a,  with  intent  to  commit  felonj',  aftci" 

or  followed  by  conviction          ...          ...          ...          ...  ...  15 

being  found  in,  without  accountmg,  after  two  convictions  ...  16 
having  instruments  for  breaking,  or  being  found  in,  for  an  un- 
lawful purpose    ...         ...         ...         ...         ...         ...  ...  153 

breaking  and  entering  and  committing  felon  J- in             ...  ...  284 

the  like  with  intent  to  comniit  felon\-      ...          ...          ...  ...  284 

committing  felony  in  and  breaking  out  of           ...          ...  ...  284 

stealing  in  a,  to  the  value  of  £5,  or  by  menace  ...          ...  ...  290 

setting  fire  to          ...          ...          ...          ...          ...          ...  ...  364 

causing  damage  to,  by  explosion  ...         ...         ...  365 

E 

ELECTIONS,  .see  "  Bribery,"  "  Undue  Infliience,"  and  "  Treafhu/," 

offences  agamst  tlie  Ballot  Act     ...         ...         ...         ...  ...  103 

personation  at         ...          ...          ...          ...          ...          ...  ...  352 

ELECTRICITY, 

capable  of  being  stolen     ...          ...          ...          ...          ...  ...  250 

stealing  or  wasting...          ...          ...          ...          ...          ...  ...  294 

damaging  electric  line  or  work     ...          ...          ...          ...  ...  373 

damaging  telegrapliic  macliine      ...          ...          ...          ...  ...  374 

EMBEZZLEMENT, 

what  is         258,  271 

punishment  of        ...         ...         ...         ...         ...         ...  ...  290 

wlio  is  a  clerk  or  servant  ...         ...         ...         ...         ...  -71,  272 

propert J' subject  of,  must  be  the  master's            ...          ...  ...  275 

distinction  between  theft  and        ...          ...          ...          ...  ...  276 

evidence  as  to         ...          ...          ...          ...          ...          ...  ...  278 

of  chattel,  money,  or  valual)le  security  ...          ...          ...  ...  290 

by  a  public  servant  or  constable               ...          ...          ...  ...  291 

by  a  servant  of  a  local  maiine  board       ...          ...          ...  ...  389 

EMBRACERY 99 

ENLISTMENT, 

illegal           73 

ENTER,  .see  ''  Burqlary." 

ENTRY, 

forcible        ...          ...          ...          ...          ...          ...          ...  ...  61 

KSCAPE, 

punislunent  of         ...          ...          ...          ...          ...          ...  ...  119 

vfjjunlary  peiinission  of,  Ijy  oflicei           ...          ...          ...  ...  115 

negligent  permission  of,  by  oHicer             ...          ...          ...  ...  115 

sheriir  peiinitting  ...          ...          ...          ...          ...          ...  ...  116 

aHsiHting,  of  pi-isoners  of  war       ...          ...          ...          ...  ...  117 

aHHJHting,  from  constable  or  peace  oJfic(M'              ...          ...  ...  118 

helping,  from  priKoii           ...          ...          ...          ...          ...  ...  118 

by  jMjrKonM  in  cuHlfxly         ...          ...          ...           ...           ...  ...  119 

from  I'entoriville  or  I'arkliuist  priHons    ...           ...          ...  ...  120 

KVIDE.NCE, 

.xH  to  tii<-ft 269 

aH  to  cndxr/./letnent              ...          ...          ...          ...          ...  ...  271 

(w  to  ceilain  niirtiipi)roj)riations  and  fiainlH          ...          ...  ...  316 

i  I    II  1 


463  INDEX 


EVIDENCE — conlimied  i-aoe 

giving  false  certificates  as  to         ...          ...          ...  ...  ...  Ill 

forging  document  made,  b}'  Act  of  I'ailiament  ...  ...  ...  337 

forging  instrument.s  of       ...          ...          ...          ...  ...  ...  110 

preventing  any  person  from  giving           ...          ...  ...  ...  113 

in  case  of  making  or  possessing  explosivcf           ...  ...  ...  3G4 

EWE, 

stealing  or  killing  witii  intent  to  steal  carcase  of  ...  ...  289 

EXCHEQUER  BILL, 

forging          ...          ...          ...          ...          ...          ...  ...  ...  331 

acts  preparatory  to  making           ...          ...          ...  ...  343,  344 

EXECUTION, 

of  lawful  sentence               ...         ...         ...         ...  ...  ...  156 

EXHIBITION, 

indecent       ...          ...          ...          ...          ...          ...  ...  133,  153 

EXPLOSIVES, 

burning  of,  doing  grievous  bodily  harm  by         ...  ...  ...  196 

causing  grievous  bodily  harm,  or  sending  with  intent  ...  ...  196 

placing  near  a  ship  or  building  with  intent  to  cause  bodily  injury  198 

causing  or  conspiring  to  cause  dangerous  explosion  ...  ...  363 

unlawfully  making  or  possessing  ...          ...          ...  ...  ...  363 

evidence  in  last  case           ...          ...          ...          ...  ...  ...  364 

damaging  a  building  by     ...          ...          ...          ...  ...  ...  365 

placing  near  a  building  oi-  vessel  with  intent      ...  ...  ...  369 

having  or  making  with  intent  to  commit  felony  ...  ...  373 

EXTORTION, 

by  public  officers    ...          ...          ...          ...          ...  ...  ...  88 

by  threats 280 

b}' threat  to  publish  libel  ...          ...          ...          ...  ...  ...  239 

P 

FACTORS, 

misappi'opriation  by           ...          ...          ...          ...  ...  ...  312 

FALSE  ACCOUNTING           317 

FALSE  PRETENCES,  OBTAINING  PROPERTY  BY, 

punishment  for        ...          ...          ...          ...          ...  ...  ...  297 

how  far  theft           259,268 

what  property  the  subject  of        ...          ...          ...  ...  ...  297 

"  false  pretence  "  defined  .. .          ...          ...          ...  ...  ...  298 

"  obtains "  defined              ...          ...          ...          ...  ...  ...  301 

effect  of  several  false  pretences     ...          ...          ...  ...  ...  301 

ntent  to  defraud  in            ...          ...          ...          ...  ...  ...  303 

cheating  at  play  is              ...          ...          ...          ...  ...  ...  303 

obtaining  credit  by             ...          ...          ...          ...  ...  ...  304 

after    or   followed    by  conviction   of  felony  or   certain   misde- 
meanours...         ...          ...          ...          ...          ...          ...  ...  15 

probation  of  first  otfendeis  guilty  of         ...          ...          ...  ...  17 

FALSE  SWEARING 109 

FELONY,  yee  "  Biirylart/,"  "  Church,"  and  "  Houvebreakiixj,'' 

payment  of  expenses  of  prosecution  on  conviction  of  ...  ...  H 

compensation  on  conviction  of       ...          ...          ...          ...  ...  11 

punishment  for,  if  not  otlierwise  provided           ...          ...  ...  13 

recognisances  taken  on  conviction  of  certain        ...          ...  ...  14 

conviction  of,  after  previous  convictions              ...          ...  ...  14 

cumulative  punishment  for            ...          ...          ...          ...  ...  18 

accessory  before  the  fact  to,  who  is          ...          ...          ...  ...  33 


INDEX 


469 


FELONY— con/niMcrf 

accessory  after  the  fact,  who  is    . . . 

punishment  of  accessories  before  the  fact  and  principals  in  the 
second  degree 

punishment  of  accessories  after  the  fact  ... 

treason  felony 

administering  or  taking  oath  to  commit  certain 

misprision  of  ...  ...  ...  ...  ...  ...         12'J 

assault  with  intent  to  commit 

being  found  by  night  with  intent  to  commit 
FENCE, 

stealing  metal  fixtures  from 
FERRETS, 

not  capable  of  being  stolen 
FILLY, 

stealing  or  killing  with  intent  to  steal  carcase  of 
FINDING, 

conversion  after,  when  theft 
FINE, 

explanation  of  the  term 

how  to  be  inflicted... 

amoimt  of,  not  to  be  excessive 
FIRST  DIVISION,  OFFENDER  OF  THE, 

imprisonment  as 
FIRST  OFFENDERS, 

probation  of 
FISH, 

damaging  fishponds 

putting  lime  into  water  to  damage 

unlawfully  taking  ... 
FISHPOND, 

damaging  a 
FIXTURES, 

how  far  capable  of  being  stolen    ... 

theft  of,  when  let  with  a  house    ... 

stealing,  from  a  building  ... 
FOOD, 

selling,  unfit  for  consumption 

addilf'i-ation  of 

FORCIBI.E  KNTRY 

FOREIGN  ENLIST.MKNT  ACT, 

interference  in  foreign   hostilities... 

forfeiture  of  sliip  under 

incrciising  force  of  bcdligerent  ships 

enlistment  by  misrepresentation  ... 

presumption  of  knowledge 
FORGERY         .{Jl 

definition  of 

prpHumption  of  inl«nt  to  <lcfniud 

what  acts  constitute 

"alter,"  "  resembling,"  "  forge,"  nn-aning  of 

puiiishinentH  for     ...  ...  ...  ...  ...  ...  ."{J!) 


PAGE 

37 

36 

37 

47 

64 

401 

205 

285 

293 

251 

289 

264 


10 
10 

4,  6 

17 

370 
371 

378 

371 

249 
291 
293 

147 

147 

61 


of  certain  hi-uIh 
of  tniUMfcr  <)i  nUti-Xi 
of  certain  India  iKinds 
of  Kxchwpier  bills,  Ac 


76 
76 
77 
3.-)0 
321 
321 
123  4 
329 
.S.-|0 
X\0 
330 
330 
.131 


170 


INDEX 


FORGERY— C07i<m?w;ri  paoe 

of  a  bank-note         ...          ...          ...          ...          ...          ...  ...  3.31 

of  a  stock  certificate  under  the  National  Debt  Act       ...  ...  .S.Sl 

of  registers,  &c.,  as  to  certain  annuities               ...          ...  ...  ;i3I 

of  a  deed,  bond,  &c.,  or  signatures  thereto          ...          ...  ...  331 

of  a  will       .331 

of  a  bill  of  excliange,  promissory  note,  &c.          ...          ...  ...  331 

of  an  undertaking,  order,  request,  &c.     ...          ...          ...  ...  331 

of  a  note,  bill,  or  security  for  payment  of  money,  or  an  indorse- 
ment tliereon      ...          ...          ...          ...          ...          ...  ...  331 

of  an  accountable  receipt  or  acquittance  or  receipt  for  money...  332 

of  a  Court  roll        332 

of  a  cheque               ...          ...          ...          ...          ...          ...  ...  332 

of  a  register  or  a  copy  thereof      ...          ...          ...          ...  332,  333 

of  an  authority  for  the  transfer  of  stock              ...          ...  ...  333 

of  a  certificate  of  the  redemption  of  land  ta.x     ...          ...  333  (note  6) 

of  a  debenture         ...          ...          ...          ...          ...          ...  ...  334 

of  a  document  relating  to  the  registration  of  deeds        ...  ...  334 

of   an  instrument   made   by  tlie   Accoimtant-Cieneral  or  other 

officers      ...          ...          ...          ...          ...          ...          ...  ...  334 

drawing  a  bill  or  order  without  authority           ...          ...  ...  335 

obtaining  property  by  a  forged  instrument          ...          ...  ...  335 

obtaining  probate  or  letters  of  administration  l)y  a  forged  will  335 

of  a  stamp  or  die    ...          ...          ...          ...          ...          ...  ...  335 

of  the  seal  of  a  court  of  record      ...          ...          ...          ...  ...  336 

of  process    ...          ...         ...         ...         ...         ...         ...  ...  336 

serving  or  acting  under  forged  process     ...          ...          ...  ...  336 

of  a  copy  or  certificate  of  a  record            ...          ...          ...  ...  336 

of  a  document  to  l)e  used  as  evidence      ...          ...          ...  110,336 

uttering  a  false  cop  J' of  a  record  ...          ...          ...          ...  ...  337 

of  an  instrument  made  evidence  by  Act  of  Parliament  ...  337 

of  a  marriage  licence  or  certificate            ...          ...          ...  ...  337 

of  a  signature  of  a  witness  to  a  transfer  of  stock             ...  ...  337 

a  clerk  of  the  Bank  of  England  oi'  Ireland  making   a  wrong 

dividend  warrant            ...          ...          ...          ...          ...  ...  337 

of  process  of  a  County  Court,  or  serving  it         ...          ...  ...  337 

of  the  seal  or  signature  of  a" commissioner           ...          ...  ...  338 

of  any  process  issued  by,  or  declaration  before,  a.  justice  ...  338 

making  a  false  entry  as  to  copyright        ...          ...          ...  ...  338 

defacing  rate  books             ...          ...          ...          ...          ...  ...  338 

of  ballot  papers       ...          ...          ...          ...          ...          ...  ...  339 

of  telegrams             ...          ...          ...          ...          ...          ...  ...  339 

receiving  forged  bank-notes           ...          ...          ...          ...  ...  340 

acts  preparatory  to  making  bank-notes  ...          ...          ...  339-343 

acts  preparatory  to  making  Exchequer  bills       ...          ...  343-344 

of  trade-marks  (.«ee  "  7 Va(/e  J/ari-.s  ")     ...          ...          ...  ...  346 

of  stamps  (A-ee  "  iSVam/w ")             ...         ...         ...         ...  348-350 

practising  as  a  solicitor  after  conviction  of        ...         ...  ...  112 

at  common  law        ...          ...          ...          ...          ...          ...  ...  350 

under  the  Merchant  Shipping  Act          ...         ...         ...  ...  387 

FORTRESSES, 

wrongfully   obtaining    or    communicating    official    information 

as  to          48,49 

FORTUNE  TELLING             152 

FRAUD, 

by  agents,  trustees,  and  olficers  of  companies  ...          ...  310-317 


INDEX 


471 


PAGB 

311,  312 


FRAUDULENT  CONVERSION, 
under  Larceny  Act  1901  ... 

FRUIT, 

stealing,  or  damaging  with  intent  to  steal  ...         ...         ...     293 

damaging  any         ...         ...         ...         ...         ...         ...         ...     374 

G 
GAME, 

"  game  ■' and  "  night  '  defined     ...          ...          ...  ...  ...  376 

three  persons  going  armed  in  pursuit  of,  by  night  ...  ...  60 

taking  game  or  rabbits  by  night  ...          ...          ...  ...  ...  376 

being  on  land,  armed,  b\-  night,  in  pursuit  of,  or  rabliits  ...  376 

assaulting  person  authorised  to  arrest  offenders  ...  ...  376 

unlawfully  hunting  deer  ...          ...          ...          ...  ...  ...  377 

assaulting  keeper  of  deer ...          ...          ...          ...  ...  ...  377 

killing  hares  or  rabbits  in  a  warren  liy  night     ...  ...  ...  378 

GAMING  HOUSE, 

what  is  a     ...          ...          ...          ...          ...          ...  ...  143,  402 

punishment  for  keeping  a...          ...          ...          ...  ...  ...  141 

evidence  as  to  a     ...          ...          ...          ...          ...  ...  ...  144 

GAMING  IN  PUBLIC            153 

GARDEN, 

stealing  a  plant,  &c. ,  from            ...         ...         ...  ...  ...  293 

damaging  a  plant,  &c. ,  in ...          ...  ...  ...  374 

GAS, 

capable  of  being  stolen     ...         ...         ...         ...  ...  ...  250 

breach  of  contract  of  service  as  to           ...         ...  ...  ...  392 

GELDING, 

stealing  or  killing  with  intent  to  steal  the  carcase  of  ...  ...  289 

GIRL,  nee  "  Alxluctioii,"  "Carnal  Kiioidedge,"  "  Woman,"  &c., 

suffering  to  resort  to  premises  for  purpose  of  carnal  connection  1 36 

GLASS, 

stealing  from  a  building  ...         ...         ...         ...  ...  ...  292 

H 
HARBOUR, 

causing  damage  to  works  of  ...  ...  ...  ...  ...     366 

HARD  LABOUR, 

imprisonment  witli  or  without     ...  ...  ...  ...  ...  4 

description  of         ...  ...  ...  ...  ...  ...  ...     4,  r^ 

employment  of  prisoners  not  sentenced  to  ...  ...  ...  6 

HAY, 

setting  fire  to  a  stack  of   ... 
crop  of 

attempting  the  above 
HEALTH, 

nuisance  to... 
HEIFER, 

hUabng  or  killing  with  intent  to  steal  carcase  of 

HKKKSV  

HUilfWAYS, 

niiJHiinrc  to... 
HO.MH  IDE, 

defmition     ,., 

when  the  remote  ciiubc  of  dcAtb,  or  one  of  hcviT.-il  arts  is 

when  cauNing  death  does  unl  uinoiinl    lo 


..  .36.-) 
..  36S 
.      370 

..      147 

..  2S9 
..      126 

..      MS 

7.'..  40.1 

..      17S 

I  SO 


472 


ISDEX 


HOMICIDE— to7iyiH)t€(Z  PAOK 

when  unlawful        ...          ...          ...          ...          ...  ...  ...  181 

when  murder  or  manslaughter     ...          ...          ...  ...  ...  18'2 

when  reduceil  to  manslaughter  l)^-  provocation  ...  ...  182,  185 

when  not  extenuated  by  provocation      ...          ...  ...  ...  188 

HOPBINDS, 

doing  damage  to  ...            ...          ...          ...          ...  ...  ...  .S()9 

HORSE, 

stealing  or  killing  with  mtent  to  steal  carcase  of  ...  ...  289 

servant  feeding,  against  master's  orders  ...          ...  ...  ...  307 

HOUSE,  see  "  Dx-dling  Jlou-se;' 

riotous  demolition  of  or  damage  of          ...          ...  ...  57,58 

definition  of            ...          ...          ...          ...          ...  ...  ...  282 

tiieft  of  chattel  or  fixtures  from  a  let  house       ...  ...  ...  291 

HOUSE-BREAKIN(J,  .see   "  Bur'j/ari/,"    " //o;we,"   and  '' Dirdliinj 
House," 

definition  of  and  punisiinient  for  ...          ...          ...  ...  ...  284 

being  found  by  night  with  implements  for          ...  ...  ...  285 

being  found  by  night  in  house,  with  intent  to  commit  felony...  285 
the  last  two  offences,  after  or  followed  by  conviction  for  felony 

or  a  certain  misdemeanour       ...         ...         ...  ...  ...  15 


IDLE  AND  DISORDERLY  PERSON         151,  1 

52, 

156 

IGNORANCE, 

of  law,  effect  of,  as  to  criminality 

26 

of  fact,  the  like 

27 

IMMORALITY, 

ecclesiastical  censure  for    ... 

132 

IMPLEMENTS, 

of  house-breaking... 

285 

IMPOSSIBLE, 

attempt  to  commit  an  offence  which  is  in  fact    ... 

40,  41 

IMPRISONMENT, 

explanation  of  the  term     ... 

2,4 

liability  to,  where  penal  servitude  oidy  is  provided 

1 

with  or  without  hard  labour 

4 

as  misdemeanant  of  first  division 

4,6 

separate 

5 

employment  during,  without  hard  labour 

6 

incapacity  of  persons  sentenced  to  certain  terms  of 

12 

illegal  beyond  the  seas 

89 

INCITEMENT 

to  commit  a  crime  ... 

39, 

399 

to  mutiny    ... 

47 

to  offences  under  the  Orticial  Secrets  Act 

50 

to  otFences  under  the  Post  Office  Acts     ... 

296 

INCORRIGIBLE    ROGUE     1 

54, 

155 

INDECENCY, 

acts  of  gross,  between  males 

131 

act  of,  in  public  place 

132 

exhibition  of 

152 

INDECENT, 

sending,  letter 

135 

assault 

205 

20 

22 

392, 

393 

392, 

393 

113 

... 

136 

IXDEX  47; 


INDECENT— co7i<mj/erf  paoe 

assault  on  a  male  person    ...  ...  ...  ...  ...  ...     204 

consent  to  assault,  when  no  defence         ...  ...  ...  ...     202 

INDIA  BOND, 

forging         ...         ...         ...         ...  ...  ...  ...  ...     330 

personation  as  to    ...  ...  ...  ...  ...  ...  ...     351 

INFANT,  ,see  "  Child," 

may  commit  theft  as  a  bailee        ...  ...  ...  ...  ...     263 

INLAND  REVENUE,  offences  by  ortioers  of  93 

INN, 

keepings  disorderly  ...  ...  ...  ...  ...      146 

INSANITY, 

when  an  act  is  prevented  from  being  a  crime   by 

presumption  against 
INTIMIDATION, 

what  is 

using  unlawful 

of  witness  before  a  Royal  Commission     ... 

procuring  carnal  comiection  by     ... 


JESUITS, 

offences  by  and  as  to         ...         ...         ...  ...  ...  ...       68 

JUDICIAL  DOCUMENTS, 

theft  of        292 

JUSTICE, 

conspiracy  to  defeat  ...  ...  ...  ...  ...  ...      113 

JUSTICE  of' THE  PEACE, 

forging  process  or  instrument  of,  or  entered  into  before  . . .     338 

K 

KIDNAPPING  SOUTH  SEA   ISLANDERS  85 

KILLING,  see  "  Homicide," 

defined         ...          ...          ...          ...          ...  ...  ...  ...  175 

presumption  that  it  is  nmrder      ...          ...  ...  ...  ...  190 

KING,  ■■itti  "  Trecuson," 

assaults  on  . . .          ...          ...          ...          ...  ...  ...  ...  .">  1 

discharging  explosives  near           ...          ...  ...  ...  ...  51 

producing  arms  with  intent  to  injure  or  alarm  ...  ...  ...  52 

contempts  against  llie        ...          ...          ...  ...  ...  ...  52 

L 
LAMB, 

stealing  or  killing  witii  intent  to  steal  carcase  of  ...  ...     2S9 

LAND, 

not  capable  of  being  stolen  ...  ...  ...  ...  ...      -'19 

vendfjr  of,  concealing  incumbruncca  ...  ...  ...  ...      'M)l 

LAN1>  TAX, 

forging  certificate  of  redemption  (jf  ...  ...  ...  ...     3;M 

LARCENY, 

conviction  of,  after  con victi«,n  of  felony  ...  ...  ...  ...        15 

prol^ution  of  first  olI'enderH  in  cartes  of      ...  ...  ...  ...        17 

taking  and  cairying  awiiy  wliat  iH  ...  ...  ...         21(i,  25f) 

of  jiniperty  of  a  married  woman  ...  ...  ...  ...  ...      2fS 

lliingH  ukpablc  of  JMiing  stolen  (ue  *'  Thtfl")       ...  ...  219   253 


474  INDEX 


LARCENY — coiUimied  paoe 

hy  a  servant            ...          ...          ...          ...          ...          ...          ...  258 

liy  a  false  pretence              ...          ...          ...          ...          ...          ...  259 

l)y  taking  advantage  of  a  mistake             ...          ...          ...          ...  261 

by  a  bailee  ...          ...          ...          ...          ...          ...          ...          ...  262 

of  property  found  ...          ...          ...          ...          ...          ...          ...  264 

by  and  from  whom  it  may  be  committed             ...          ...          ...  263 

when  conversion  amounts  to         ...  ...  ...  ...         266,  267 

obtaining  by  false  pretences  distinguished  from             ...          ...  26S 

temporary  taking  is  not    ...          ...          ...          ...          ...          ...  268 

taking  tame  animal  wandering  is  not      ...          ...          ...          ...  269 

evidence  as  to          ...          ...          ...          ...          ...          ...          ...  269 

punisiiment  for,  when  no  other  provided             ...          ...          ...  286 

the  like  after  ])rcvious  convictions            ...          ...          ...          ...  286 

killing  animals  with  intent  to  steal  carcase,  &c.              ...          ...  286 

of  a  valuable  security  other  than  a  document  of  title  to  land  ...  287 

from  the  person      ...          ...          ...          ...          ...          ...          ...  289 

of  a  valuable  security,  &c.,  by  a  public  servant  or  constable, 

&e.,  entrusted  therewith            ...          ...          ...          ...          ...  291 

of  a  will       288 

of  a  post  letter-bag,  post  letter  therefrom,  &c.  ...          ...          ...  288 

of  a  letter  containing  a  chattel,  money,  or  valuable  security  by 

a  servant  of  the  Post  Office      ...         ...         ...         ...         ...  288 

of  a  letter  by  the  same      ...          ...          ...          ...          ...          ...  291 

of  a  post  letter-bag  from  Post  Office  packet,  or  letter  out  of  such 

bag           291 

of  a  chattel,  money,  or  a  valuable  security  out  of  a  letter        ...  289 

of  bond,  &c.,  by  a  servant  of  the  Bank  of  England  or  Ireland  289 
of  a  horse  or  cattle  or  killing  the  same  with  intent  to   steal 

carcase,  &c.         ...         ...         ...          ...          ...         ...          ...  289 

of  property  in  a  dwelling  house  worth  £5  or  by  menace           ...  290 
of  manufactured  goods  of  value  of  ten  shillings  in  course  of 

manufacture        ...          ...          ...          ...          ...          ...          ...  290 

of  goods  in  any  vessel  in  port       ...          ...          ...          ...          ...  290 

of  goods  in  any  dock          ...          ...          ...          ...          ...          ...  290 

of  anj'  part  of  a  ship  in  distress  or  wrecked,  or  goods  therefrom  290 

of  a  ciiattel  or  fixture  let  with  a  house  or  lodging         ...          ...  291 

of  a  document  of  title  to  land       ...          ...          ...          ...          ...  292 

of  a  judicial  or  official  document ...          ...          ...          ...          ...  292 

of  glass,  woodwork,  or  metal  from  a  building,  private  or  public 

property,  or  burial  ground         ...          ...          ...          ...          ...  29.S 

of  a  tree,  sapling,  shrub,  or  underwood,  or  cutting  the  same  with 

intent       ...          ...          ...          ...          ...          ...          ...          ...  293 

of  vegetable  production  in  a  garden,  &c.,  or  conservatory        ...  293 

of  oysters  from  an  oyster  bed        ...          ...          ...          ...          ...  293 

of  electricity           ...         ...          ...         ...         ...         ...         ...  294 

of  any  ore,  &c.,  or  coal  from  a  mine,  &c.             ...          ...          ...  294 

ofadog 295 

LETTER, 

sending  an  indecent            ...          ...          ...          ...          ...          ...  135 

unlawfully  demanding  any  valuable  thing  by      ...          ...          ...  280 

accusing  by,  of  a  crime     ...          ...          ...          ...          ...          ...  280 

threatening  by,  to  destroj-  property         ...          ...          ...          ...  280 

stealing  post  letter-bag  or  letter  therefrom,  &c.  ...          ...          ...  288 

stealing  letter  containing  money,  &c.,  by  a  servant  of  the  Post 

Office        288 


INDEX 


475 


LETTER— fOJ</("nMed  paoe 

stealing  a  letter  by  a  servant  of  the  Post  Office...  ...  ...  291 

stealing  post  letter-bag  from  Post  Office  packet,  or  a  letter  from 

such  bag ...          ...          ...          ...          ...  ...  ...  ...  "291 

stealing  chattel,  money,  or  valuable  security  out  of  a  letter    ...  289 

receiving  stolen  letter,  (fee.             ...          ...  ...  ...  ...  320 

opening  unlawfully              ...          ...          ...  ...  ...  ...  295 

sending,  threatening  to  huin  property  or  wound  cattle  ...  369 

LEVYINC;   WAR, 

high  treason  by       ...          ...          ...          ...  ...  ...  ...  43 

LIBEL, 

definition  of             ...          ...          ...          ...  ...  ...  277,  423 

seditious      ...          ...          ...          ...          ...  ...  ...  ...  70 

blasphemous             ...          ...          ...          ...  ...  ...  ...  126 

on  a  foreign  power              ...          ...          ...  ...  ...  ...  73 

on  the  dead              ...          ...          ...          ...  ...  ...  ...  227 

things  capable  of  l)cing  a  ...          ...          ...  ...  ...  ...  228 

defamatory  matter,  definition  of  ...          ...  ...  ...  ...  228 

publication  of,  defined        ...          ...          ...  ...  ...  ...  229 

wlien  malicious       ...          ...          ...          ...  ...  ...  ...  231 

publication  of  the  truth    ...          ...          ...  ...  ...  ...  231 

of  matter  believed  to  be  true   ...  ...  ...  ...  231 

of  criticism          ...          ...          ...  ...  ...  ...  235 

of  Parliamentary  proceedings  ...  ...  ...  ...  235 

of  reports  of  trials  and  public  meetings  ...  235,  238 

in  a  court  of  justice       ...          ...  ...  ...  ...  237 

threatening  to  publish  unla^vfully...          ...  ...  ...  ...  239 

punishment  for       ...         ...         ...         ...  ...  ...  ...  239 

LI. ME, 

putting  into  water             ...         ...          ...  ...  ...  ...  372 

LODGINr;, 

theft  of  chattel  or  fixture  from    ...          ...  ...  ...  ...  291 

LORD'S  SUPPER, 

depraving  the          ...          ...          ...          ...  ...  ...  ...  128 

LOTTERY, 

keeping  a    ...          ...          ...          ...          ...  ...  ...  ...  146 

LUNATICS, 

oliences  as  to          ...          ...          ...          ...  ...  ...  224-226 


M 

MACHINE, 

doing  damage  to    ... 
.MADNESS,  «ee  "  Lunacy." 
MAIM, 

what  is 

consent  to   ... 

MAINTENANCE         

MALICE, 

in  murder  and  iK)micide    ... 

in  lilxd 
MALICIOUS  INJURIES,  ««;  "  J/v-o/i,' 

Ut  «liipH  of  war  or  Ht^jrcs  in  naval  dockyards 

cauHing  or  doing  act  with  intent  )o  cuiihc,  by  exp 

U'l  dweliiiighouKc  l»y  exi»loHion 

to  certain  articlcH  of  nianufauturc  or  niachiiicr}... 

t(j  a  Hcu  bank  or  dam 


370 


165 

1  (i.-) 

112, 

KM) 

IS2, 
23 1 , 

107 
123 

362 

es 

3(i3 

365 

365 

.'iliti 

371 

476  IXDEX 


-MAIJCIOUS  INJURIES— fOJt/mwe(^  tace 

to  any  work  of  a  port,  reservoir,  or  canal  ...  ...  ...     366 

to  a  bridge  or  (lain...  ...  ...  ...  ...  ...  ...      .'{66 

to  a  railway  or  engine  or  carriage  thereon  ...  ...  :i66,  ■567 

placing  explosive  near  ship  with  intent  to  cause  ...  ...     369 

to  any  ship  in  distress  or  goods  Ijclonging  thereto  ...  ...     369 

to  cattle       369 

to  hopbinds...  ...  ...  ...  ...  ...  ...  ...     369 

to  machinery  ...  ...  ...  ...  ...  ...  ...     370 

to  a  mine     ...         ...         ...         ...         ...         ...  ...         370,371 

to  a  river  or  canal  ...  ...  ...  ...  ...  ...  ...     371 

to  private  water     ...         ...  ...  ...         ...         ...  ...     371 

putting  lime  in  water  ...  ...  ...  ...  ...  ...     372 

to  a  ship      ...  ...  ...  ...  ...  ...  ...  ...     372 

to  a  sea-mark  ...         ...         ...  ...         ...         ...         ...     372 

to  a  tree,  &c.,  or  underwood        ...  ...  ...  ...         372,374 

to  an  electric  line  or  work  ...  ...  ...  ...  ...     373 

making  an  explosive  or  engine  to  cause  ...  ...  ...  ...     373 

to  a  building  by  a  tenant...  ...  ...  ...  ..  ...     374 

to  a  toll-bar 374 

to  telegraph  works...  ...  ...  ...  ...  ...  ...     374 

to  a  book  or  work  of  art  ...  ...  ...  ...  ...  ...     375 

to  a  public  monument        ...  ...  ...  ...  ...  ...     375 

to  property  generally         ...  ...  ...  ...  ...  ...     375 

MANSLAUGHTER, 

definition  of  182,407 

homicide  reduced  to,  by  provocation       ...  ...  ...  ...      185 

a  man  cannot  commit  on  himself...  ...  ...  ...  ...      192 

accessories  before  the  fact  in         ...  ...  ...  ...  ...      190 

punishment  of        ...  ...         ...         ...         ...         ...         ...     192 

MANTRAP, 

setting  a     ...         ...         ...  ...  ...  ...         ...  ...     200 

MANUFACTURE, 

stealing  goods  to  the  value  of  lOv.  exposed  in  the  course  of     ...     290 
causing  damage  to  certain  articles  of,  or  tools    ...  ...  365,  366 

MANUSCRIPT,  damaging      375 

MARE, 

stealing  or  killing  with  intent  to  steal  carcase  of  ...  ...     289 

MARRIAGE, 

solemnising  unlawfully,  of  member  of  the  Royal  Family 
procuring  the,  of  the  parent  of  a  bastard 
solenmising  irregular 
■  abduction  with  intent  to  marry    ... 
forging  certificate  or  licence  of     ... 

MARRIED   WOMAN, 

how  far  capable  of  crime  in  her  husband's  presence 

when  not  an  accessor}'  after  the  fact 

possession  of,  when  that  of  husband 

offences  against  the  property  of    ... 

offences  by,  against  the  property  of  her  husl)an(l 

receiving  property  stolen  by,  from  her  husband 

MERCHANDISE  MARKS  ACT,  see  "  Trade  Mark"  and  " 
Df>-<crlptionJ' 

MERCHANT   SHIPPING    ACT,  see  ''Ship." 

METAL, 

stealing  from  a  building  or  other  place   ...         ...         ...         ...     293 

making  or  selling,  resembling  gold  or  silver       ...  ...  ...     360 


52 

135 

213, 

214 

215 

337 

23, 

395 

37 

243 

248 

248, 

263 

320 

Trade 

INDEX  477 


MILLPOND,  P-^o^ 

breaking  (lam  of     ...          ...          ...          ...          ...          ...  ...     372 

MINE, 

stealing  ore,  &c.,  or  coal  from      ...          ...          ...          ...  ...     '-94 

setting  fire  to          :iG5,  :?(iS 

iloiug  mischief  with  intent  to  obstruct  the  working  of  ...  ...     S70 

MISAPPROPRIATION, 

"  misappropiiate "  defined             ...          ...          ...          ...  .-•     -'^lO 

bj- bankers,  merchants,  agents,  <S:c.          ...          ...          ...  ...     1^0 

under  power  of  attorney    ...          ...          ...          ...          ...  ...     312 

by  factors  or  agents            ...          ...          ...          ...          ...  ...     312 

clerks  assisting  in  ...          ...          ...          ...          ...          ...  ...     313 

MISCARRIAGE, 

woman  using  an  instrument  to  procure  on  herself          ...  ...      107 

using  an  instrument  to  procure  on  a  woman       ...          ...  ...      197 

MISCHIEF, 

acts  involving  public          ...          ...          ...          ...          ...  ...      123 

MISDEMEANOUR, 

what  crimes  are     ...          ...          ...          ...          ...          ...  ...        11 

misdemeanants  of  the  first  division          ...          ...          ...  ...     4,  G 

conxiction  of  certain,  after  previous  conviction...          ...  ...        15 

punishment  of,  wliere  not  otherwise  provided    ...          ...  ...        18 

cumulative  punishments  for         ...          ...          ...          ...  ...        19 

when  committed  by  married  women        ...          ...          ...  ...       23 

who  is  a  principal  in          ...          ...          ...          ...          ...  ...        33 

undefined    ...          ...          ...          ...          ...          ...          ...  ■•.      122 

MISPRISION, 

of  treason 121,401 

of  felony       122,  401 

MISTAKE, 

theft  by  taking  advantage  of         ...          ...          ...          ...  ...     2G1 

MONKS, 

offences  Ity  and  as  to         ...          ...          ...          ...          ...  ...        o8 

MONUMENT,  damaging  a      375 

MURDER, 

definition  of             182,407 

suicide  is     ...          ...          ...          ...          ...          ...          ...  ...      190 

presumption  that  killing  is            ...          ...          ...          ...  ...      191 

punishment  of         ...          ...          ...          ...          ...          ...  ...      191 

attempts  to  commit            ...          ...          ...          ...          ...  ...      192 

threats  and  conspiracies  to            ...          ...          ...          ...  ...      193 

atlmiiiistering  an  oatii  to  commit...          ...          ...          ...  ...        ^'-l 

cajjacity  of  married  women  to  commit    ...          ...          ...  ...        2.3 

MUUDKKERS,  rescue  of         117 

.MUTINY,  incitement  to  47 

N 
NATIONAL  DEBT  ACT, 

forcing  Hto<:k  i.erlifif  ate   undei-      ...  ...  .   .  ...      3:il 

NECESSARIES  OK   LIKK. 

duty  to  provide 

the  like  for  uppieMli<<"H  and  Hcrvants 

parent  not  jiroviding  for  cliildir-ii 
NECESSITY, 

ed'ri-t  of,  a«  to  criminality... 

nkgli(;ence, 

criiiicH  by    ... 


171 

•_'()(», 

:{92 

220 

11)9. 

171 

478  INDEX 


NIGHT,  see  "  Burglary  "  and  "  Househrealcing"  '•aok 

definition  of,  in  burglary...          ...          ...  ...  ...  ...  282 

in  poaching...          ...          ...  ...  ...  ...  376 

being  found  by,  with  intent  to  commit  felony  ...  ...  ...  283 

the  same  after  or  followed  by  conviction  of  fcilony  or  a  certain 

misdemeanour    ...          ...          ...          ...  ...  ...  ...  15 

NIGHT  POACHING,  see  "  Oame." 

NUISANCE, 

common       ...          ...          ...          ...          ...  ...  ...  140,  141 

to  health,  life,  or  property            ...          ...  ...  ...  ...  147 

by  offensive  trades              ...          ...          ...  ...  ...  ...  148 

to  liighways             ...          ...          ...          ...  ...  ...  ...  148 

to  bridges    ...          ...          ...          ...          ...  ...  ...  ...  149 

to  navigable  rivers             ...         ...         ...  ...  ...  ...  149 

in  the  Tost  Oflice 150 

NURSERY  GROUND, 

stealing  plant,  &c.,  from  ...         ...         ...  ...  ...  ...  293 

O 
OATH, 

administering  or  taking,  to  commit  treason  or  certain  felonies  ...       64 
the  like,  to  engage  in  mutinous  or  seditions  purposes  ...  ...        64 

compulsion,  how  far  an  excuse  for  taking  certain  unlawful      ...        64 
meaning  of  ...  ...  ...  ...  ...  ...  ...      106 

OBSCENE  PUBLICATIONS  133 

OFFICE, 

incapacity  for  holding  certain,  on  conviction     ...         ...         ...        12 

refusing  to  serve  in  a  public  ...  ...  ...  ...  ...        94 

selling  and  making  interest  for    ...  ...  ...  ...  103,104 

OFFICER,  .see  "■  Prihlic  Officer." 

OFFICIAL  DOCUMENT, 

theft,  destruction,  &c.,  of  ...  ...  ...  ...  ...     292 

OFFICIAL  INFORMATION, 

disclosure  of  ...  ...  ...  ...  ...  ...  ...       48 

OFFICIAL  TRUST, 

breach  of     ...         ...         ...         ...         ...         ...         ...         ...       49 

ORCHARD, 

stealing  plant,  fruit,  &c. ,  from     ...  ...  ...  ...  ...     293 

damagmg  the  same  in        ...  ...  ...  ...  ...  ...     374 

ORDER, 

forging  an  ...  ...  ...  ...  ...  ...  ...  ...     331 

ORE, 

stealing  from  a  mine  ...  ...  ...  ...  ...  ...     294 

fraudulently  concealing     ...  ...  ...  ...  ...  ...     308 

OX, 

stealing  or  killing  with  intent  to  steal  carcase  of  ...  ...     289 

OYSTERS, 

stealing  from  an  oyster  bed  ...  ...  ...  ...  ...     293 

unlawfully  dredging  for    ...  ...  ...  ...  ...  ...     295 

P 
PACIFIC  ISLANDERS, 

kidnapping  ...  ...  ...  ...  ...  ...  ...        85 

PARKHURST,  .see  ''Prison." 

PARLIAMENT,  .see  •■' Bribery,"  ''  Election,"  "  Libel,"  "  Treating," 
"  Uitdut  Injlutnce," 


INDEX  479 


PARTNER,  PAGE 

theft  by  a 263,320 

obtaining  crcilit  by  a  false  pretence         ...  ...  ...  ...  297 

PAUPER, 

offences  by  ...          ...          ...          ...          ...  ...  ...  152,  154 

desertion  of             ...         ...         ...         ...  ...  ...  ...  223 

PEACE, 

acts  tending  to  disturb  the  public            ...  ...  ...  ...  124 

PEDIGREE, 

falsification  of          ...          ...          ...          ...  ...  ...  ...  305 

PEDLAR,  unlicensed 151 

PENAL  SERVITUDE, 

explanation  of  the  term    ...         ...         ...  ...  ...  ...  1,3 

substituted  for  transportation      ...          ...  ...  ...  ...  1 

incapacity  of  person  sentenced  to            ...  ...  ...  ...  12 

being  at  large  before  expiration  of  sentence  of  ...  ...  ...  121 

PENTONVILLE,  see  "PWsoh." 
PERJURY, 

defined        106 

subornation  of        ...          ...          ...          ...  ...  ...  ...  105 

punishment  for       ...          ...          ...          ...  ...  ...  ...  109 

by  child  not  upon  oath     ...          ...          ...  ...  ...  ...  108 

false  swearing         ...          ...          ...          ...  ...  ...  ...  109 

by  child  not  upon  oath     ...  ...  ...  ...  108 

practising  as  a  solicitor  after  conviction  of  ...  ...  112 

PERSONATION, 

under  the  Police  Act         ...          ...          ...  ...  ...  ...  Ill 

to  obtain  property              ...          ...          ...  ...  ...  ...  351 

in  fraud  of  the  Admiralty...         ...         ...  ...  ...  ...  352 

at  elections...          ...          ...          ...          ...  ...  ...  ...  352 

PETITION, 

procuring  signatures  to,  without  la^\^ul  autliority,  and  present- 
ing riotously       ...          ...          ...          ...  ...  ...  ...  62 

PICKETING,  see  ''Intimidation." 
PICTURE, 

selling  ob.scene        ...          ...          ...          ...  ...  ...  ...  133 

damaging     ...          ...          ...          ...          ...  ...  ...  ...  375 

PILOT, 

neglect  of  duty  by...          ...          ...          ...  ...  ...  ...  386 

PIRACY, 

definition  of            ...          ...          ...          ...  ...  ...  ...  78 

assaults  with  intent  to  commit     ...         ...  ...  ...  ...  79 

acts  of  hostilit}' under  a  foreign  commission  ...  ...  ...  79 

adliering  on  the  KCii  to  the  King's  enemies  ...  ...  ...  79 

boarding  sliips  and  tlirowing  cargo  overboard  ...  ...  ...  80 

favouring  jiirates    ...          ...          ...          ...  ...  ...  ...  80 

trading  and  conspiring  with  pirates        ...  ...  ...  ...  81 

punishment  for       ...          ...          ...          ...  ...  ...  ...  81 

not  fighting  pirates            ...          ...          ...  ...  ...  ...  81 

piratical  Blave-trmling       ...          ...          ...  ...  ...  ...  83 

PLANT, 

stealing  or  damaging  witli  intent  to  steal  ...  ...  ...  293 

damaging    ...          ...          ...          ...          ...  ...  ...  ...  374 

P(JIS0N, 

u<IminiKtering  to  a  woman  to  procure  ab<irlioii  ...  ...  ...  1 97 

udministcring  ho  as   Ui  endanger   bfi-  or  intlict  gi'icvouH  bodily 

injury       ...          ...          ...          ...          ...  ...  ...  ...  198 


480  INDEX 


POISON — continued  paor 

administering  with  intent  to  injure          ...          ...          ...  ...  199 

supplying  to  procure  miscarriage              ...          ...          ...  ...  199 

POLICE,  see  '' GonMahle,'' 

theft  or  embezzlement  by  member  of  f orc^e          ...          ...  ...  291 

POLICE  SUPERVISION, 

subjection  to           ...          ...          ...          ...          ...          ...  ...  7 

person  subject  to,  not  reporting  liimsolf...          ...          ...  ...  8 

after  certain  second  convictions  ...          ...          ...          ...  ...  15 

POSSESSION, 

defined         24.S,  425 

by  special  owner    ...          ...          ...          ...          ...          ...  ...  245 

POST  OFFICE,  .see  "  Letter,'"  and  "  Telegram," 

offences  by  officials  of        ...          ...          ...          ...          ...  ...  92 

nuisances  in  the     ...          ...          ...          ...          ...          ...  ...  150 

soliciting  the  commission  of  offence  under  tlie  Post  Office  Acts  296 

POUNDBREACH          121 

POWER    OF   ATTORNEY, 

misappropriation  under     ...          ...          ...          ...          ...  ...  312 

forging  signature  of  witness  to,  to  transfer  stock          ...  ...  337 

PRAYER-BOOK, 

depraving  the          ...          ...          ...          ...          ...          ...  ...  128 

clerg3'man  refusing  to  use  the       ...          ...          ...          ...  ...  129 

PREVIOUS  CONVICTION, 

conviction  of  felony  after,  of  felon j'        ...          ...          ...  ...  14 

larceny  after,  of  felonj'     ...          ...          ...  ...  15 

of  larceny    ...          ...          ...  ...  286 

of  felony  or  one  of  certain  misdemeanours  after, 

of  the  like           15 

police  supervision  on  conviction  after  certain     ...          ...  ...  15 

oifences  after  certain  convictions  following          ...          ...  ...  15 

stealing  certain  fixtures,  plants,  or  oysters  after  certain  ...  294 

PRINCIPAL, 

in  the  first  degree,  who  is             ...          ...          ...          ...  ...  30 

in  the  second  degree,  who  is         ...          ...          ...          ...  31,  32 

the  same  in  bigamy            ...          ...          ...          ...          ...  ...  213 

in  misdemeanour,  who  is  . . .          ...          ...          ...          ...  ...  33 

punishment  of,  in  the  first  or  second  degree       ...          ...  ...  36 

in  tlie  second  degree  in  coining  ...          ...  ...  361 

in  treason    ...          ...          ...          ...          ...          ...          ...  ...  46 

PRISON, 

helping  to  escape  from       ...          ...          ...          ...          ...  ...  118 

breaking      ...          ...          ...          ...          ...          ...          ...  ...  119 

escaping  from  cei'tain          ...          ...          ...          ...          ...  ...  120 

Pentonville  or  Parkliurst  prison,  escape  from    ...          ...  ...  120 

PROBATION  OF  FIRST  OFFENDERS, 17 

PROCESS, 

forging  of  a  Court  of  record  or  serving  when  forged     ...  ...  336 

the  like  of  a  Countj' Court            ...          ...          ...          ...  ...  337 

PROCLAMATION, 

preventing  reading  of,  against  riot           ...          ...          ...  ...  56 

PROCURING  WOMEN           136 

PROMISSORY   NOTE,  forging  a       331 

PROPERTY, 

offences  against      ...          ...          ...          ...          ...          ...  ...  241 

classified "242 

in  movable  things  defined...         ...         ...          ...         ...  ...  242 


INDEX  481 


PROSTITUTE,  PAGE 

wandering  in  public            ...          ...  ...          ...  ...  ...     151 

PROVOCATION, 

when  homicide  reduced  to  manslaughter  by        ...  ...  185,  414 

when  it  does  not  extenuate  homicide  ...          ...  ...  188,414 

to  a  third  person,  what  is              ...          ...          ...  ...  190,414 

PUBLICATION,  see  ''Libel;' 

obscene        ...         ...         ...         ...  ...         ...  ...  ...      133 

PUBLIC  BODY, 

corruption  of  member  of  ...         ...  ...          ...  ...  ...        98 

PUBLIC  DEPARTMENT, 

misapplying  the  mark  of  ...          ...  ...          ...  ...  ...        51 

PUBLIC  MEETING, 

reports  of,  when  not  libellous        ...  ...          ...  ...  ...     235 

PUBLIC  OFFICER, 

defined          ...          ...          ...          ...  ...          ...  ...  ...        87 

extortion  and  oppression  by          ...  ...          ...  ...  ...        88 

fraud  or  breach  of  trust  by           ...  ...          ...  ...  ...        90 

neglect  of  duty  by              ...          ...  ...          ...  ...  ...        90 

corrupting  ...          ...          ...          ...  ..           ...  ...  ...        97 

giving  certain  false  certificates     ...  ...          ...  ...  ...      Ill 

permission  of  escape  by  certain    ...  ...          ...  ...  ...      115 

commission  by,  of  acts  injurious  to  the  public  ...  ...  ...      124 

PUBLIC  SERVANT, 

theft  or  embezzlement  by  .. .          ...  ...          ...  ...  ...     291 

PUBLIC  STORES, 

removing  marks  from        ...          ...  ...          ...  ...  ...     308 

PUBLIC  WORSHIP, 

disturbing    ...          ...          ...          ...  ...          ...  ...  ...      130 

PUNISHMENT  3  10 

for  felony,  if  not  otherwise  pruvidcil  ...          ...  ...  ...        13 

of  persons  under  sixteen  ...          ...  ...          ...  ...  ...        16 

for  misdemeanour,  if  not  otherwise  provided     ...  ...  ...        IS 

cumulative...          ...          ...          ...  ...          ...  ...  ...        18 

Q 
QUAKERS, 

societies  of,  not  uidawful ...          ...  ...          ...  ...  ...        67 

QUAY 

stealing  goods  from            ...          ...  ...          ...  ...  ...      290 

R 

RAUniTS,  s.c  "r/«OTe." 

RAILWAY, 

offences  with  intent  to  cause  danger  to  travellers  on  ...  ...      197 

endangering  tiie  safety  of  a  passenger  on             ...  ...  ...     200 

misconduct  while  in  charge  of  a  carriage  on        ...  ...  ...     201 

offences  by  servants  of  the  company  ...          ...  ...  ...     201 

netting  Hie  to  building  belonging  to  ...          ...  ...  ...     36.1 

obstructing              ...          ...          ...  ...          ...  ...  366,  375 

RA.M, 

stealing,  or  killing  with  intent  to  steal  carcase  of  ...  ...     2S9 

RAI'K, 

definition  of             ...          ...          ...  ...          ...  .  .  ...     207 

wlio  cannot  commit            ...          ...  ...          ...  ...  ...     208 

piiiiiHliiiKiil  fur       ...          ...          ...  ...          ...  ...  ...     209 

I     I 


482  IJS'DEX 


RATE-BOOK,  i"'^"" 

injuring,  concealing,  &c.    ...         ...  ...  ...  ...  ...  338 

RECEIPT, 

forging  a     ...          ...          ...          ...  ...  ...  ...  ...  332 

RECEIVINCi  STOLEN  PROPERTY, 

I'ccciving  defined    ...          ...          ...  ...  ...  ...  ...  31S 

punishment  for       ...          ...          ...  ...  ...  ...  ...  319 

I coeiving  stolen  will,  letter,  &c.  ...  ...  ...  ...  ...  3'JO 

other  property  ...          ...  ...  ...  ...  ...  3'20 

taking  a  reward  for  recovering  stolen  property  ...  ...  320 

recoc;nizances, 

putting  under         ...          ...          ...  ...  ...  ...  ...  10 

taken  on  conviction  of  certain  felonies  ...  ...  ...  ...  14 

forging         ...          ...          ...          ...  ...  ...  ...  ...  338 

acknowledging  in  a  false  name     ...  ...  ...  ...  ...  352 

record, 

forging  seal,  process,  &c.,  of  court  of  ...  ...  ...  ...  336 

unlawfully  giving  copy  of,  of  court  ...  ...  ...  ...  337 

recordinc  sentence  of  death  13 

reformatory, 

detention  in  a         ...          ...          ...  ...  ...  ...  ...  7 

sentence  to  detention  in  a              ...  ...  ...  ...  ...  16 

REGISTER, 

forging,  destroying,  altering,  &c. ,  a  ...  ...  ...  .332,  333 

REGISTRATION, 

frauds  as  to,  of  title           ...          ...  ...  ...  ...  ...  304 

forging  document  as  to,  of  title    ...  ...  ...  ...  ...  334 

using  false  certificate  of,  of  ship  ...  ...  ...  ...  ...  384 

RELIEVING  OFFICER, 

assaulting    ...          ...          ...          ...  ...  ...  ...  ...  205 

REQUEST, 

forging  a     ...          ...          ...          ...  ...  ...  ...  ...  331 

RESCUE,           116 

felonious      ...          ...          ...          ...  ...  ...  ...  ...  117 

of  murderers            ...          ...          ...  ...  ...  ...  ...  117 

RESERVOIR, 

causing  damage  to  works  of          ...  ...  ...  ...  ...  366 

breaking  dam  of     ...          ...          ...  ...  ...  ...  ...  372 

RIOT       56 

preventing  reading  proclamation  against,  and  continuing  after 

the  reading          ...          ...          ...  ...  ...  ...  ...  57 

demolition  of  houses           ...          ...  ...  ...  ...  ...  57 

damage  to  houses   ...          ...          ...  ...  ...  ...  ...  58 

preventing  the  sailing  of  a  ship    ...  ...  ...  ...  ...  60 

more  than  ten   persons  presenting  petition   to  the  King  or  a 

House  of  Parliament      ...         ...  ...  ...  ...  ...  63 

suppression  of         ...         ...         ...  ...  ...  ...  ...  157 

RIVER, 

nuisances  to  navigable       ...          ...  ...  ...  ...  ...  149 

ROBBERY, 

when  committed  by  a  married  woman  ...  ...  ...  ...  23 

definition  of             256 

punishment  for       ...          ...          ...          ...  ...  ...  ...  279 

when  armed  or  with  another         ...          ...  ...  ...  ...  279 

with  personal  violence       ...          ...          ...  ...  ...  ...  279 

assault  with  intent  to  rob             ...          ...  ...  ...  ...  279 


INDEX  483 


PAOE 

ROOUE  AND  VAGABOND  152,  155 

ROOT, 

stealing  or  tlamaging  with  intent  to  steal            ...          ...          ...  293 

damaging  an  J'          ...          ...          ...          ...          ...          ...          ...  374 

ROUT 56 

ROYAL  FAMILY, 

unlawfully  solemnising  marriage  of  member  of  ...          ...          ...  52 

S 

SACRILEGE 284 

SAILOR, 

pei-sonation  of         ...          ...          ...          ...          ...          ...          ...  351 

deserting  or  wrongfully  discharging         384,385 

giving  false  evidence,  «!tc.,  as  to  wages  of            ...          ...          ...  388 

SAPLING, 

stealing,  or  damaging  with  intent  to  steal           ...          ...          ...  293 

damaging 372,  374 

SEA   BANK, 

causing  damage  to ...          ...          ...          ...          ...          ...          ...  366 

SEALS, 

forging  certain        ...  ...  ...  ...  ...  ...  330,336 

forging,  of  a  County  Court           ...          ...          ...          ...          ...  337 

forging,  of  commissioner  for  oaths           ...          ...          ...          ...  338 

SEAMAN,  .sec  ''Sailor.'' 

SEDITION, 

aihninistering  or  taking  oath  to  engage  in  seditious  purpose    ...  64 

seditious  words  or  libels    ...          ...          ...          ...          ...          ...  70 

seditious  conspiracy            ...          ...          ...          ...          ...          ...  70 

seditious  intention,  definition  of  ...          ...          ...          ...          ...  70 

presumption  as  to  seditious  intention      ...          ...          ...          ...  71 

SELF-DEFENCE          159 

SENTENCES, 

cunndativc  ...          ...          ...          ...          ...          ...          ...          ...  18 

SERVANT, 

not  supplying  necessaries  for        ...         ...         ...         ...        200,392 

po.s.session  by           ...          ...          ...          ...          ...          ...          ...  243 

theft  by  a 258 

who  is,  in  embezzlement    ...         ...         ...  ...         ...        271,272 

theft  or  embezzlement  of  chattel,  inonc}-,  or  valualjlc  security 

by             290 

feeding  horse  against  master's  orders      ...         ...         ...         ...  307 

>irKEI', 

Htealing,  or  killing  with  intent  to  steal  carcase  of         ...          ...  289 

SHERIFF, 

oU'enecs  Ijy  ...          ...          ...          ...          ...          ...          ...          ...  93 

concealing  or  permitting  escajjc    ...          ...          ...          ...          ...  116 

SHIP,    Hf'.p.     '^  Furc.vjn    EnliMmnU    Act,''     ''  Md/lriinii     Itijitriis," 
'*  Larceny." 

riotouHly  preventing  the  sailing  of            ...          ...          ...          ...  60 

jnip<;iliiig  a  perHon  eHcaj)ing  from,  in  diHtress      ...          ...          ...  197 

jila<:ing  i^xploHJve  nc^ar  with  intent  to  (;auHe  bodily  iiijuiy         ...  198 

the  tuinie  with  intent  to  damage  the  ship             ...          ...          ...  36.S 

Htculing  goodH  from,  in  u  haven    ...          ...          ...          ...          ...  290 

8t<.-aling  part  of,  or  gtMxlH  from,  in  dislriHH  or  \\  rcrkiil...          ...  290 


484  INDEX 


^YLW—continnrd  J'aoe 

setting  fire  to  ship  of  war             ...          ...          ...          ...  ...  3G2 

any  ship      ...          ...          ...          ...          ...  ...  .SG5 

attempting  the  same          ...          ...          ...         ...         ...  ...  808 

threatening  the  same          ...          ...          ...          ...          ...  ...  '.W^ 

casting  awa}%  or  causing  loss  of  ...          ...          ...          ...  ...  'M'u 

cxhiliiting  false  lights  to  wreck    ...          ...          ...          ...  ...  .S(>7 

ilestroying  a,  in  distress,  or  gooils  tlicrcfiom      ...          ...  ...  'M\\) 

damaging  with  intent  to  desti'oy...          ...          ...          ...  ...  ',\~2 

damaging  or  removing  buoys        ...          ...          ...          ...  ...  87'2 

owner  or  master  using  illegal  certificate  of  registration  ...  HS4 

making  default  as  to  collision  regulations  ...  .'iS4 

oljstructing  sei-vii.e  of  process...          ...  ...  384 

master  of  Uritish,  concealing  nationality  of        ...          ...  ...  384 

master  of  British,  or  person  belonging  to,  landing  or  leaving 

behind  seaman  or  apprentice  aln-oad  ...  384 

wrongfulh"  discharging  seaman  or  apprentice  385 

taking  it  to  sea  in  an  unseaworthy  state  ...  385 

master  or  person  in  charge  of,  neglecting  duty  in  case  of  collision  385 

pilot  of,  neglecting  duty                ...          ...          ...          ...  ...  386 

sending  unseawortliy,  to  sea          ...          ...          ...          ...  ...  3S6 

making  false  declaration  as  to       ...  ...  ...  ...  387,388 

cndiczzlement  by  servant  of  marine  board           ...          ...  ...  38'J 

mutilating  or  making  false  entry  in  a  log            ...          ...  ...  389 

taking  money  for  binding  an  apprentice  to  sea-fishing  ...  ...  3!)0 

taking  wreck  abroad           ...          ...          ...          ...          ...  ...  31)0 

exhibiting  false  lights         ...          ...          ...          ...          ...  ...  390 

SHOOTING, 

with  intent  to  do  grievous  bodily  harm  ...         ...         ...  ...  195 

at  certain  officers  ...         ...         ...         ...         ...         ...  ...  195 

SHRUB, 

.stealing,  or  damaging  with  intent  to  steal          ...         ...  ...  293 

damaguig 372,  374 

SLAVE-TRADING, 

defined         ...          ...          ...          ...          ...          ...          ...  ...  82 

piratical      ...          ...          ...          ...          ...          ...          ...  ...  83 

punishment             ...          ...          ...          ...          ...          ...  ...  84 

serving  on  a  slave-ship      ...  ...  ...  ...  ...  84,85 

kidnapping  Pacific  Islanders         ...          ...          ...          ...  ...  85 

SMUGGLE, 

persons  assembled  in  order  to       ...          ...          ...          ...  ...  58 

SOCIETIES,  UNLAWFUL, 

what  are 66,  67 

pimishment  of  members  of            ...          ...         ...         ...  ...  68 

SODOMY, 

committing...          ...          ...          ...          ...          ...          ...  ...  131 

attempting  ...          ...          ...          ...          ...          ...          ...  ...  131 

assault  with  intent  to  commit      ...         ...         ...         ...  ...  204 

tlireatening  to  accuse  of,  with  a  view  to  extortion         ...  280,  281 

SOLDIER, 

offences  by,  as  to  billeting  and  sale  of  commissions       ...  ...  92 

personation  of         ...          ...          ...          ...          ...          ...  ...  351 

SOLICITOR, 

practising  as,  after  having  been  convicted  of  forgei-j-,  perjury,  or 

common  barratry           ...         ...         ...         ...         ...  ...  112 


INDEX 


485 


SOLITARY  CONFINEMENT  ABOLISHED  

SPECIAL  OWNER, 

detiuitiou  of 

possession  of 

theft  from  ... 
SPRING-GUN, 

setting  a 
STACK, 

burning 

attempting  to  l)iun 
STAMP, 

forging  a     ...  ... 

ofl'ences  as  to,  under  the  Stamp  Duties  Management  Act 
STATUE, 

Jamaging  ... 
STATUTE, 

disobetlience  to  a    ... 
STOCK, 

forging  transfer  of  certain 

demanding  transfer  of,  by  forged  certificate 

forging  signature  of  witness  to  power  of  attorney  to  transfer 
STORES, 

removing  marks  from  public 

SUBORNATION   OF  PERJURY     

SUICIDE  


PAGE 

6 

24.1 
'245 
263 

200 

3(55 
370 

335 
;^4S-350 

..     375 

..       95 

..  330 
..  333 
..     337 

..  308 
(IS,  109 
..     190 


T 
TELEGRAM, 

official  of  Post  Office  disclosing  or  intercepting  the  contents  of  92 

servant  of  a  telegraph  company  divulging  the  contents  of  ...  92 

forging         .339 

TELEGRAPH  MACHINERY,  .see  ''Electricity," 

damaging 374 

THEFT,  nee  ''Possesion"  "Property  "  "Larceny,''^ 

taking  and  carrying  away,  what  is          ...          ...  ...  ...  246 

of  property  of,  and  by,  nuuried women  ...          ...  ...           23,  248 

things  capable  or  not  of  being  stolen       ...          ...  ...  249,253 

movable  things            ...          ...          ...          ...  ...  ...  249 

land  and  things  fixed  thereto            ...          ...  ...  ...  i>49 

title-deeds       ...         ...         ...          ...          ...  ...  ...  249 

choscB  in  action           ...          ...          ...          ...  ...  ...  249 

water               ...         ...         ...         ...         ...  ...  ...  250 

gas       250 

electricity        ...          ...          ...          ...          ...  ...  ...  250 

animals             ...          ...          ...          ...          ...  ...  251  252 

dca<l  boflies      ...          ...          ...          ...          ...  ...  ...  'J52 

things  abandoned        ...          ...          ...          ...  ...  ...  253 

thingH  of  no  value       ...          .  .          ...          ...  ...  ...  253 

by  talking  and  larrying  away                      ...          ...  ...  ...  25(5 

by  a  Korvant             ...          ...                        ...          ...  ...  ...  25S 

by  a  falhe  pn-tcnce               ...          ...  259 

by  taking  advantage  of  a  miHtaki-  2(i| 

by  a  bailiM;  ...          ...          ...  262 

Ity  and  from  wliom  committeil  263 


486  INDEX 


THEFT— ro)i7m?«crZ  paok 

of  property  found  ...          ...          ...          ...  ...  ...  ...  264 

when  eonveision  is              ...          ...          ...  ...  ...  12(10,  207 

obtaining  by  false  pretenees  is  not            ...  ...  ...  ...  20S 

taking  tame  animal  wanilcring  is  not        ...  ...  ...  ...  209 

evidence  as  to          ...          ...          ...          ...  ...  ...  ...  200 

distinguished  from  embezzlement              ...  ...  ...  ...  277 

punishmcnt.s  for  (.s( (^  " //ft/Tc ?i?/ ")             ...  ...  ...  2S0-2i)0 

taking  reward  for  recovering  stolen  propertj'  ...  ...  ...  .'520 

THREATS,  UNLA^VFUL,  .see  "  Intimidation;' 

to  publish  a  libel 2:]0 

sending  letter  containing  certain...          ...  ...  ...  ...  2>S(» 

to  destroy  property            ...          ...          ...  ...  ...  2S0,  .*}00 

to  accuse  of  certain  crimes  for  extortion...  ...  ...  ...  2S() 

tlie  lilvc,  to  compel  a  dealing  witli  a  valuable  security  ...  ...  2S1 

of  violence  for  a  like  ])urposc        ...          ...  ...  ...  ...  2S1 

demanding  an\  valuable  thing  Mith,  with  intent  to  steal  ...  2S1 

THROWING, 

corrosive  fluid          ...          ...          ...          ...  ...  ...  ...  IflO 

TITLE-DEEU.S, 

how  far  capal lie  of  being  stolen    ...          ...  ...  ...  ...  2,TA) 

theft,  destruction,  concealment,  &c. ,  of  ...  ...  ...  ...  292 

TOLL-BAR, 

damaging     ...          ...          ...          ...          ...  ...  ...  ...  .S74 

TRADE,  -see  ^^ Bankrupt cy"  and  ^^Intimidation,'" 

conspiracy  in  resti'aint  of,  what  is            ...  ...  ...  ...  .'590 

how  punished          ...          ...          ...          ...  ...  ...  ...  .'591 

what  acts  in  I'cstraint  of,  not  unlawful   ...  ...  ...  ...  .'591 

TRADE   DESCRIPTION, 

defined         :5  It,  ,345 

falsel}' applying       ...          ...          ...          ...  ...  ...  .■5I0-.S48 

accessories  thereto ...         ...         ...         ...  ...  ...  ...  348 

TRADE   MARK, 

defined         .344,345 

forging          ...          ...          ...          ...          ...  ...  ...  :540-;548 

accessories  thereto...         ...         ...          ...  ...  ...  ...  348 

TRANSPORTATION,  penal  servitiule  substituted  f(jr  1 

TREASON, 

definition     ...          ...          ...          ...          ...  ...  ...  ...  42 

imagining  the  King's  death          ...          ...  ...  ...  ...  42 

levying  war...          ...          ...          ...          ...  ...  ...  ...  43 

adhei'iug  to  the  King's  enemies    ...          ...  ...  ...  ...  44 

adhermg  to  a  King  de  facto          ...          ...  ...  ...  ...  44 

killing  the  King's  wife  or  son       ...          ...  ...  ...  ...  44 

words,  when  treason          ...          ...          ...  ...  ...  ...  44 

violating  the  King's  wife ...          ...          ...  ...  ...  ...  45 

killing  the  Chancellor,  &c...          ...          ...  ...  ...  ...  45 

punishment  of         ...          ...          ...          ...  ...  ...  ...  46 

all  principals  in     ...          ...          ...          ...  ...  ...  ...  46 

treasonable  felonies            ...          ...          ...  ...  ...  ...  47 

payment  of  expenses  of  prosecution  on  conviction  of  ...  ...  11 

a  married  woman  can  commit       ...          ...  ...  ...  ...  23 

taking  or  administering  oath  to  commit...  ...  ...  ...  64 

misprision  of            ...          ...          ...          ...  ...  ...  121,401 

TREASURE  TROVE, 

concealing    ...         ...         ...          ...          ...  ...  ...  ...  308 


INDEX 


487 


TREATING, 

definition  of 

punishment  for 
TREE, 

stealing,  or  damaging  with  intent  to  steal 

damaging     ... 
TRUCK  ACT, 

offences  against 
TRUSTEES, 

fraudulent    ... 
TURNPIKE  GATE, 

damaifins 


PAGE 

...     102 
...     103 

...     293 
;]72,  374 

...     394 

...     314 

...     374 


U 

UNDERTAKING, 

forging  an   ... 
UNDERWOOD, 

stealing,  or  damaging  \\illi  intent  to 

damaging    ... 
UNDUE  INFLUENCE, 

definition  of 

punishment  for 

UNLAWFUL   ASSEMBLY 

UNLAWFUL   DRILLING     

UNSWORN  EVIDENCE  OF  CHILD 
UTTER, 

meaning  of  (and  .see  "  Fonju'ij  ")  ... 


steal 


331 


293 

372, 

374 

101 

103 

5i 

"),  63 

63 

lOS, 

109 

329 


VAGABONDS 151-155 

VALUABLE  SECURITY,  .s.,<;  ^^  Larvcuj,"  '^  Lcaa\' 

definition  of  287 

stealing,  destroying,  &e.    ...          ...          ...          ...  ...  ...     287 

unlawfully  compelling  a  person  to  deal  with      ...  ...  280,  281 

stealing  from  t lie  person    ...          ...          ...          ...  ...  ...      289 

o))taining,  or-  olilainiiig  tlic  execution  nf,  hy  false  j)retences  ...      297 

\  EGETABLE  PRODUtHTON, 

stealing,  or  damaging  with  intent  to  steal           ...  ...  ...      293 

setting  fire  to  stack  of       ...          ...          ...          ...  ...  ...      365 

crop  of         ...          ...          ...          ...  ...  ...     368 

attempting  the  fi^regoing  two  oOcuiu's     ...          ...  .  .  ...     370 

damaging    ...          ...          ...          ...          ...          ...  ...  ...      .■!74 

W 

W  APP.ANT, 

foi'ging  a,  for  the  |iayinent  of  UKtney,  &e.            ...  ...  ...     331 

for;,'iiij;,  of  a  justice             ...          ...           ...          ...  ...  ...      ,'{38 

W  A'ICIIINC,  .s,,   "////////»/,//,V„/." 

W.V'IKP, 

how  far  f;af)al)lc  of  being  Hlolen    ...          ...          ...  ...  256 

damaging  privnti;   ...          ...          ...          ...          ...  ...  .'{71 

putting  liiiii' into    ...          ...          ...          ...          ...  ...  ...     ."{71 

lirfjich  of  contra*;!  of  H(!rvicc  a«  to            .             ...  392 

WEST.MINSTEPv    MALL, 

public  meeting  within  a  inili-  of  ...          ...          ...  ...  ...       ii| 


488 


INDEX 


iiitndiiiont  Act, 


WHARF, 

stealing  goods  from 
WHIPPINC;, 

piinishnienL  of,  how  iiulicaiud 

how  to  be  inflicted... 

of    juvenile    offenders   under   Criminal    Law 

1885         

WILL, 

stealing  or  destroying,  &c.,  a 

receiving  a  stolen  ... 

forging  a 
WITCHCRAFT, 

pretending  to  exercise 
WITNESSES, 

dissuading  from  testifying 

intimidation  of,  before  a  Royal  Commission 
WOMAN,  see  ^^  Carnal  Knoivledge,"  ^'  liajK,"  dec, 

procuring     ... 

conspiracy  to  defile 

using  instruments  on  herself  with  intent  to  procure  miscar 

indecently  assaulting 

detaining  in  a  brothel 
WOODWORK, 

stealing  from  a  building    ... 
WORK  OF  ART  OR  SCIENCE, 

damaging     ... 
WORKHOUSE, 

assaulting  officer  of 
WOUNDING, 

with  intent  to  do  grievous  bodily  liarm  . . . 

certain  ofiicers 

unlawfully  and  maliciously 

cattle 
WRECK, 

impeding  person  escaping  from     ... 

assault  on  person  pi'otecting 

larceny  of    ... 

damaging     ... 

wrongfully  takmg  abroad... 


riage 


PA  OK 

290 


8 

210 

288 
320 
331 

306 

113 
113 

13fi 
137 
197 

2or> 

218 
292 
375 

205 

195 
195 
199 
369 

197 
204 
290 
369 
390 


YOUTHFUL  OFFENDERS, 

punishment  of  persons  under  sixteen 


16 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


SCHOOL  OF  LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  849  657    2 


